16-000806 Nancy Condron vs. St. Johns River Water Management District And 1044pvb, Llc Status: Closed Recommended Order on Thursday, June 16, 2016.

Summary: The applicant provided reasonable assurance of compliance with all applicable criteria for an environmental resource permit to construct a single-family residential development in St. Johns County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY CONDRON,

Petitioner,

vs. Case No. 16 - 0806

ST. JOHNS RIVER WATER MANAGEMENT

DISTRICT AND 1044PVB, LLC,

Respondents.

_______________________________/

RECOMMENDED ORDER

The f inal hearing in this case was held on April 25 and 26,

2016, in Jacksonville, Florida, before Bram D.E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Jane West, Esquire

Josh Smith, Esquire

Jane West Law, P.L.

6277 A1A South, Suite 101

St. Augustine, Florida 32080

For Respondent 1044PVB, LLC :

Eric Olsen, Esquire

Amelia A. Savage, Esquire

Hopping, Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

For Respondent St. Johns River Water Management District:

Karen C. Ferguson, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

STATEMENT OF THE ISSUE

The issue to be determined in this case is whe ther 1044PVB,

LLC (ÐApplicantÑ) , is entitled to Environmental Resource Permit

(ÐERPÑ) No. IND - 109 - 143282 - 1 from the St. Johns River Water

Management District (ÐDistrictÑ), authorizing the construction of

a surface water management system to serve a propose d residential

development in St. Johns County, Florida.

PRELIMINARY STATEMENT

On January 8, 2016, the District gave notice of its intent

to issue an ERP to Applicant to construct a surface water

management system for a proposed single - family subdivision (Ð the

ProjectÑ). On January 29, 2016, Petitioner filed a petition

challenging the proposed agency action. The District then

referred the matter to DOAH to conduct an evidentiary hearing.

At the final hearing, Joint Exhibits 1 Î 3 were received into

evidence. Official recognition was taken of the Environmental

Resource Permit ApplicantÓs Handbook (ÐApplicantÓs HandbookÑ),

Volumes I and II , as well as Florida Administrative Code Chapters

40C - 4 and 62 - 330.

Petitioner presented the testimony of: Nancy Condron;

Harold Wilkening, accepted as an expert in water resources

engineering and stormwater management; and Dr. David Stites,

accepted as an expert in aquatic ecology, environmental science,

and applied biology. PetitionerÓs Exhibits 3, 4, 15, 30, and 32

were r eceived into evidence.

Applicant presented the testimony of: Rhodes Robinson,

accepted as an expert in environmental science, ecology, biology,

and wetland ecology; Thomas Welch, accepted as an expert in

stormwater management systems and civil engineering ; and Ki Pak,

accepted as an expert in hydraulic modeling, flood plain

analysis, hydrologic engineering, and hydraulic engineering.

ApplicantÓs Exhibits 1 - 4 were received into evidence.

The District presented the testimony of: Cameron Dewey,

accepted as an expert in water resources engineering;

Walter Esser, accepted as an expert in wildlife ecology and

wetland mitigation; and Everett Frye, accepted as an expert in

water resources engineering. District Exhibits 1 Î 4 were received

into evidence.

The three - volume Transcript of the final hearing was filed

with DOAH. Respondents submitted proposed recommended orders

that were considered in the preparation of this Recommended

Order.

FINDING S OF FACT

The Parties

1. Petitioner Nancy Condron is a resident and landowner in

St. Johns County. Her residence is located across Ponte Vedra

Boulevard from the Project.

2. Petitioner uses the nearby Guana River Wildlife

Management Area for nature - based recreation, including hiking and

bird - watching.

3. Applicant is a foreign limited liability company and the

applicant for the ERP at issue in this case.

4. The District is an independent special district granted

powers and assigned duties under chapter 373, Florida Statutes,

including powers and duties related to the r egulation of

construction activities in wetlands. The Project is within the

boundaries of the District.

The Project Site

5. The Project site is 17.13 acres located at 1044 Ponte

Vedra Boulevard in St. Johns County, Florida.

6. The site currently consis ts of forested lands on the

east and west and pasture areas in the middle. There is an

existing trail road that runs the length of the property and a

small residence.

7. The site has four small ponds excavated as watering

holes, ranging in size from 0.04 to 0.24 acres.

8. There are 4.41 acres of wetlands and other surface

waters on the site. There is a 3.49 - acre area of mixed forested

wetland on the site that continues offsite to the south and west.

There are also three isolated wetlands on the site, e ach less

than a half - acre in size.

9. The we tland system adjacent to the Project site flows to

the Guana River. The Guana River is a freshwater, Class III

waterbody. It is an Outstanding Florida Water, but has been

designated by the Department of Enviro nmental Protection as

impaired for nutrients.

10. The site is not used by threatened or endangered

species for feeding, nesting, or breeding.

The Project

11. The proposed Project is a 22 - lot, single - family

subdivision.

12. The proposed surface water m anagement system for the

Project includes curb and gutter paved roadways, storm inlets,

concrete pipes, vegetated natural buffers, treatment swales, and

a wet detention stormwater pond.

13. The wet detention stormwater pond would discharge into

adjacent w etland s that flow to the Guana River.

Wetlands

14. The point of discharge from the ProjectÓs stormwater

management system is not in the designated Outstanding Florida

Water.

15. Applicant proposes to fill the four ponds and the three

isolated wetlands . Applicant also proposes to fill 0.28 acres of

the larger wetland.

16. The Project includes a number of upland buffers that

are a minimum of 15 feet in width and average of 25 feet in

width. These buffers are intended to prevent potential adverse

secon dary impacts to adjacent wetlands.

17. All wetland impacts and mitigation were assessed using

the Uniform Mitigation Assessment Method (UMAM) in Florida

Administrative Code Rule 62 - 345. The UMAM assessment takes into

consideration the location and landsc ape support, water

environment, and community structure of the wetlands to be

impacted. The District also considers the condition, hydrologic

connection, uniqueness, location, and the fish and wildlife

utilization of the wetlands and other surface waters.

18. The District did not require mitigation for filling the

artificial ponds. The District also did not require mitigation

for filling the isolated wetlands because each is less than a

half - acre in size.

19. As mitigation for filling 0.28 acres of the larger

wetland, Applicant would purchase 0.25 mitigation bank credits

from the St. Marks Pond Mitigation Bank.

20. The St. Marks Pond Mitigation Bank is located in the

same drainage basin as the wetland area that would be filled.

21. The District determi ned that purchasing the mitigation

bank credits would offset the functional loss associated with

filling part of the wetland.

22. Two areas on the site where no upland buffers are

proposed were assessed for secondary impacts to wetlands in the

UMAM evalua tion.

23. The mitigation bank credits proposed for the Project

would offset all of the adverse, direct, and secondary impacts to

wetlands or surface waters associated with this Project.

24. Because direct and secondary impacts would be fully

mitigated, t he Project would not cause cumulative impacts.

Water Quantity

25. A majority of the ProjectÓs stormwater runoff would be

conveyed to the wet detention pond. The wet detention pond

provides water quantity protection by attenuating the post -

development peak rate of discharge.

26. Applicant modeled the pre - development peak rate of

discharge and the post - development peak rate of discharge. The

modeling indicated that the post - development peak rate of

discharge will not exceed the pre - development peak ra te of

discharge for the 25 - year, 24 - hour storm event.

27. Section 3.3 of the Applicant's Handbook, Volume II,

prohibits a reduction in the 10 - year or 100 - year floodplain for

projects with an upstream drainage basin of five square miles or

greater. The p roposed Project has an upstream drainage basin of

4.6 square miles, so this criterion is not applicable.

28. Applicant showed the Project would increase offsite

flood elevations by only 0.01 feet, which is negligible.

29. The Project would not cause ad verse water quantity

impacts to receiving waters or adjacent lands.

Water Quality

30. Water quality would be managed in the Project through a

combination of wet detention pond, swales, and vegetative natural

buffers (ÐVNBsÑ) .

31. The wet detention po nd would treat a majority of the

runoff from the Project.

32. Section 8 of the ApplicantÓs Handbook, Volume II,

contains presumptive criteria for the design of a wet detention

pond. The proposed wet detention pond meets the presumptive

criteria. Theref ore, the detention pond is presumed to provide

reasonable assurance that the water quality of receiving waters

will be protected.

33. Applicant is proposing to construct swales at the back

of Lots 20, 21, and 22 to treat runoff by infiltration.

Section 9 of the ApplicantÓs Handbook, Volume II, contains

presumptive criteria for swale system design and performance.

The Project meets the presumptive criteria for swales.

34. Applicant is proposing VNBs on L ots 1 through 14. The

use of VNBs is a commonly - u sed best management practice accepted

by the District for treating stormwater runoff. Like swales,

VNBs treat runoff by infiltration.

35. Stormwater runoff from the backyards of L ots 1

through 14 would drain to the VNBs. On some of these lots,

stormwat er runoff from the front yards, side yards, and rooftops

would also drain to the VNBs. The lots would be graded so that

runoff would sheet flow to the VNBs to maximize their treatment

function.

36. The VNBs would have native soils and plants. The VNBs

would have Type A soils, which are well - drained soils that

provide the highest rate of infiltration and the most

permeability.

37. Petitioner contends that, because soil borings were not

taken at the location of the VNBs, reasonable assurance was not

pro vided that the VNBs would function as proposed. However,

Petitioner did not show that the soils at the VNB locations were

unsuitable soils. In addition, Applicant agreed to use Type A

soils in the VNBs. Therefore, reasonable assurance that the VNBs

woul d have suitable soils was provided by Applicant.

38. Petitioner referred to a draft rule to support her

contention that the proposed VNBs are not properly designed, but

the draft rule has no controlling effect and is hearsay.

39. The ApplicantÓs Handbo ok does not contain presumptive

criteria for VNBs. Applicant demonstrated that the VNBs would

infiltrate 80 percent of the runoff from a three - year, one - hour

storm event, which is the same treatment efficiency the District

requires when swales are used. Reasonable assurance was provided

that the VNBs would function as proposed.

40. Because the Project would discharge to wetland s that

flow to the Guana River, a waterbody impaired by nutrients,

section 2.2 of the ApplicantÓs Handbook, Volume II, requires

Applicant to demonstrate there would be a net improvement in

water quality with respect to nutrients .

41. Applicant performed a pollutant loading analysis using

the BMPTRAINS model. The BMPTRAINS model is a generally - accepted

tool used by stormwater eng ineers for this purpose.

42. The BMPTRAINS model incorporates the information about

the pre - and post - development conditions associated with land use

and impervious area. The model accounts for site - specific

conditions, including the elevation of the gr oundwater table and

storage capacity of the soil. The design of the surface water

management system is then incorporated into the model to estimate

the pollutant removal efficiency and estimate the average annual

pollutant load that will leave the site.

43. ApplicantÓs BMPTRAINS modeling indicated that the

average annual post - development loading for total nitrogen and

total phosphorus would be substantially less than the pre -

development loading for those nutrients. Therefore, Applicant

demonstrated the Project would result in a net improvement.

Operation & Maintenance

4 4 . The Ponte Vedra Beach Preserve Homeowners Association

would be the entity responsible for operation and maintenance of

the stormwater management system.

4 5 . The wet detention pond, swales , and VNBs would be

located within an easement and maintained by the homeownerÓs

association.

4 6 . Applicant and the Ponte Vedra Beach Preserve Homeowners

Association have the ability to accept responsibility for the

operation and maintenance of th e Project.

Public Interest

4 7 . An applicant for an ERP must demonstrate that a

proposed project affecting wetlands and other surface waters

would not be contrary to the public interest. This determination

is made by balancing seven factors found in se ction 10.2.3(a)

through (g) of the ApplicantÓs Handbook, Volume I.

48 . Public interest factor (a) is whether the regulated

activity will adversely affect public health, safety, or welfare,

or the property of others. There is no aspect of the Project

tha t would affect public health, safety, or welfare, except the

potential for flooding. Reasonable assurance was provided by

Applicant that the Project would not cause flooding.

49 . Factor (b) is whether the regulated activity will

adversely affect the con servation of fish and wildlife, including

endangered or threatened species or their habitats. The

mitigation bank credits offset all of the potential adverse

impacts that the proposed project would have on the conservation

of fish and wildlife.

5 0 . Fact or (c) is whether the regulated activity will

adversely affect navigation or the flow of water or cause harmful

erosion or shoaling. The parties stipulated that the Project

will not adversely affect navigation or cause harmful erosion or

shoaling . The re cord evidence shows the Project will not

adversely affect the flow of water.

5 1 . Factor (d) is whether the regulated activity will

adversely affect the fishing or recreational values or marine

productivity in the vicinity of the activity. The Project wo uld

not affect fishing or recreational values in the vicinity. The

mitigation bank credits offset all of the potential adverse

impacts the proposed project would have on marine productivity in

the vicinity.

5 2 . Factor (e) is whether the regulated activi ty will be of

a temporary or permanent nature. The activities are of a

permanent nature. The mitigation is also permanent.

5 3 . Factor (f) is whether the regulated activity will

adversely affect or will enhance significant historical and

archaeological resources. The Project will have no effect on

historical and archaeological resources.

5 4 . Factor (g) is the current condition and relative value

of functions being performed by areas affected by the proposed

regulated activity. The relatively small lo ss of functional

value would be offset by the proposed mitigation.

5 5 . Considering and balancing these seven factors, the

Project would not be contrary to the public interest.

CONCLUSIONS OF LAW

Standing

5 6 . In order to have standing, a petitioner mu st have a

substantial interest that would be affected by the proposed

agency action. See § 120.52(13)(b), Fla. Stat. Standing

requires a petitioner to show that he or she will suffer an

injury in fact which is of sufficient immediacy, and the injury

is o f a type or nature which the proceeding is designed to

protect. See Agrico Chem. Co. v. DepÓt of Envtl. Reg. , 406 So.

2d 478, 482 (Fla. 2d DCA 1981).

5 7 . The preponderance of the evidence shows the Project

would not affect PetitionerÓs substantial intere st in recreating

on the Guana River and surrounding area. However, Petitioner

presented evidence to show her interest could be affected, which

is sufficient to establish her standing in this proceeding. See

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

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

Burden and Standard of Proof

58 . The ERP was issued under chapter 373. A petitioner

challenging a permit issued under chapter 373 has the burden of

ultimate persuasion after the applicant has p resented its prima

facie case for entitlement to the permit by entering into

evidence the application, relevant material supporting the

application, and the agency staff report or notice of intent to

issue the permit . See § 120.569(2)(p), Fla. Stat. Appl icant

presented a prima facie case for entitlement to the ERP.

Therefore, the burden of ultimate persuasion was on Petitioner to

prove her case in opposition to the permit.

59 . After a permit applicant has met its prima facie burden,

a challenger cannot meet its burden of ultimate persuasion merely

by showing that the ApplicantÓs information does not preclude the

possibility of contrary physical factors or effects. The

challenger must prove the existence of the contrary factors or

prove that the contrary effects are more likely.

6 0 . In this case, for example, it was not enough for

Petitioner to offer evidence that ApplicantÓs soil borings were

not adequate to preclude the possibility that the soils in the

VNBs and swales were not suitable soils. Petitio ner had to prove

the soils were not suitable. She failed to do so.

6 1 . The standard of proof is preponderance of the evidence.

See § 120.57)1)(j), Fla. Stat.

6 2 . The conditions for issuance of an ERP are contained in

rule 62 - 330.301, rule 62 - 330.302, a nd the Applicant's Handbook.

To demonstrate entitlement to the ERP, Applicant must provide

reasonable assurance that the Project will meet the applicable

criteria in these rules.

6 3 . The term "reasonable assurance" means a demonstration

that there is a s ubstantial likelihood of compliance with

standards. See Metro. Dade Cnty. v. Coscan Fla., Inc. , 609 So.

2d 644, 648 (Fla. 3d DCA 1992). It does not mean absolute

guarantees.

6 4 . Rule 62 - 330.301(1)(a) requires that construction,

operation, and maintenan ce of the Project will not cause adverse

water quantity impacts to receiving waters and adjacent lands.

The preponderance of the evidence shows compliance with this

requirement.

6 5 . Rule 62 - 330.301(1)(b) requires that construction,

operation, and mainte nance of the Project will not cause adverse

flooding to on - site or off - site property. The preponderance of

the evidence shows compliance with this requirement.

6 6 . Rule 62 - 330.301(1)(c) requires that construction,

operation, and maintenance of the Proje ct will not cause adverse

impacts to existing surface water storage and conveyance

capabilities. The preponderance of the evidence shows compliance

with this requirement.

6 7 . Rule 62 - 330.301(1)(d) requires that the construction,

operation, and maintenan ce of the Project will not adversely

impact the value of functions provided to fish and wildlife and

listed species b y wetlands and other surface waters. The

preponderance of the evidence shows compliance with this

requirement.

6 8 . Rule 62 - 330.301(1)(e) requires that the construction,

operation, and maintenance of the Project will not adversely

affect the quality of receiving waters such that the state water

quality standards set forth in that rule will be violated. The

absence of presumptive criteria s pecifically for VNBs does not

prevent an analysis and determination, using accepted scientific

and engineering methods, whether water quality will be adversely

affected. The preponderance of the evidence shows compliance

with this requirement.

69 . Rule 62 - 330.301(1)(f) requires that construction,

operation, and maintenance of the Project will not cause adverse

secondary impacts to the water resources. The preponderance of

the evidence shows compliance with this requirement.

7 0 . Rule 62 - 330.301(1)(i) r equires that construction,

operation, and maintenance of the Project will be capable, based

on generally accepted engineering and scientific principles, of

performing and functioning as proposed. The preponderance of the

evidence shows compliance with thi s requirement.

7 1 . Rule 62 - 330.301(1)(j) requires that construction,

operation, and maintenance of the Project will be conducted by a

person with the financial, legal , and administrative capability

of ensuring that the activity will be undertaken in acco rdance

with the terms and conditions of the permit, if issued. The

preponderance of the evidence shows compliance with this

requirement.

7 2 . Rule 62 - 330.302(1)(a) requires a demonstration that the

Project is not contrary to the public interest. Applica nt made

this demonstration.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order approving the issuance of

Environmental Resource Permit N o. IND - 109 - 143282 - 1 to 1044PVB,

LLC, with the conditions set forth in the Technical Staff Report

dated April 11, 2016.

DONE AND ENTERED this 16th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTE R

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 16th day of June , 2016 .

COPIES FURNISHED:

Karen C. Ferguson, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

(eServed)

Jane West, Esquire

Josh Smith, Esquire

Jane West Law, P.L.

6277 A1A South , Suite 101

St. Augustine, Florida 32080

(eServed)

Eric Olsen, Esquire

Amelia A. Savage, Esquire

Hopping, Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Ann B. Shortelle, Ph.D., Executive Director

St. Johns River Water M anagement District

4049 Reid Street

Palatka, Florida 32177

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommende d Order should be filed with the agency that

will issue the Final Order in this case.