17-000796 Joseph Mcclash vs. Long Bar Pointe, Lllp And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, March 6, 2018.

Summary: Petitioners failed to prove that Long Bar did not satisfy criteria for establishment of a mitigation bank in Manatee County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNCOAST WATERKEEPER, INC.;

FLORIDA INSTITUTE FOR SALTWATER

HERITAGE, INC.; AND JOSEPH

MCCLASH,

Petitioners,

vs. Case Nos. 17 - 0795

17 - 0796

LONG BAR POINTE, LLLP, AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respo ndents.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexander conducted a

hearing in these cases on December 5 and 6, 2017, in Sarasota,

Florida.

APPEARANCES

For Petition ers: Ralf Gunars Brookes, Esquire

(Suncoast and Ralf Brookes Attorney

FISH) 1217 East Cape Coral Parkway

Suite 107

Cape Coral, Florida 33904 - 9604

For Petitioner: Joseph McClash, pro se

(McClash) 711 89th Street Northwest

Bradenton, Florida 34209 - 9692

For Respondent: Chris R. Tanner, Esquire

(Long Bar) Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North Brush Street

Tampa, Florida 33602 - 4167

For Respondent: Marianna Sarkisyan, Esquire

(Department) Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boul evard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether Long Bar Pointe, LLLP's (Long Bar),

application for a Mitigation Bank/Environmental Resource Permit

(ERP) to establish a mitigation bank on a 260.80 - acre coastal

site located in western Manatee County should be approved.

PRELIMINARY STATEMENT

By letter dated December 16, 2017, the Department of

Environmental Protection (Department) issued its Notice of

Intent to Issue Mitigation Bank Permit No. 0338349 - 002 (Notice)

authorizing Long Bar to establish the Long Bar Pointe Mitigation

Bank on a 260.80 - acre site in Manatee County. The Notice

indicates that a total of 18.01 potential mitigation bank

credits will be awarded.

Petitioners, Suncoast Waterkeeper, Inc. (Suncoast), and

Florida Institute for Saltwater Heritage, Inc. (FISH), timely

filed a Verified Petition challenging the agency action. After

the initial pleading was dismissed by the Department, an Amended

Verified Petition was filed. The matter was ref erred to the

Division of Administrative Hearings (DOAH) and assigned Case

No. 17 - 0795. Petitioner, Joseph McClash (McClash), also timely

filed a Verified Petition challenging the same action. After

his initial pleading was dismissed by the Department, a First

Amended Verified Petition for Formal Administrative Hearing was

filed. This filing was referred to DOAH and assigned Case

No. 17 - 0796. The two cases were then consolidated.

At the hearing, Petitioners jointly presented the testimony

of seven witnes ses, including Mr. McClash. Also, Petitioners'

Exhibits 1 through 47, 55 (treated as hearsay only), 63, 67

(Land Use Map only), 78, and 81 (except the Key West photograph)

were accepted in evidence. The remainder of Exhibit 67 and

Exhibits 68, 69, and 75 were accepted on a proffer basis only.

Long Bar presented the testimony of two witnesses. Long Bar

Exhibits 1 through 12 were accepted in evidence. The Department

presented no witnesses; however, Department Exhibit 1 was

accepted in evidence. Finally, Joint Exhibit 1 was accepted in

evidence.

A two - volume Transcript of the hearing was prepared.

Proposed findings of fact and conclusions of law were filed by

the parties on February 16 and 19, 2018, and they have been

considered in the preparation of t his Recommended Order.

FINDING S OF FACT

The Parties

1. The Department is the state agency having concurrent

jurisdiction with the water management districts for permitting

mitigation banks pursuant to chapter 373, Florida Statutes.

Pursuant to an opera ting agreement executed by the Department

and the water management districts, the Department is

responsible for reviewing and taking final agency action on this

activity.

2. Long Bar is a Florida limited liability limited

partnership registered to do busi ness in the state. Its address

is 1651 Whitfield Avenue, Sarasota, Florida.

3. Suncoast has been registered as a nonprofit corporation

in Florida since 2012. Its mission is to "protect and restore

the Suncoast's waterways through enforcement, fieldwork,

advocacy, and environmental education for the benefit of the

communities that rely upon these precious coastal resources."

Respondents have stipulated that at least 25 members reside

within Manatee County.

4. Suncoast's geographical area of interest is the coastal

waters of Manatee and Sarasota Counties, including the waterways

and coastline in the immediate area of the project site and

within the proposed Mitigation Service Area (MSA) of the bank.

5. Suncoast's representative, Mr. Merriam, testified that

the organization has more than 800 members residing within

Manatee County. However, he does not know the exact number of

members who actually use the site or MSA and might reasonably be

expected to be affected by the proposed activities. Moreover,

h e was unaware of what activities the proposed permit actually

authorizes that would adversely affect the interests of the

members. After learning what activities are authorized by the

permit, he admitted they have a beneficial purpose.

6. FISH is an ac tive not - for - profit corporation in good

standing since 1991 and has an address at 4515 124th Street

West, Cortez, Florida. FISH owns and maintains real property,

including coastal land within the village of Cortez. FISH also

owns and maintains a wetland restoration/mitigation project

known as the "FISH Preserve" property located in Cortez.

7. The mission and goal of FISH includes the protection of

the nature and natural resources within Manatee County,

including Anna Maria Sound an d Perico Island located within the

MSA. Respondents have stipulated that FISH has at least

25 members who reside in Manatee County.

8. According t o a representative of FISH, Mr. Stevely,

there are more than 150 members who reside or own property in

Manatee County. The numbe r who actually use and enjoy the

natural resources located in the bank site and MSA is not known.

Mr. Stevely could not explain how the activities authorized by

the proposed permit would adversely affect its members. He also

admitted that the removal of exotics, planting of native plants,

and recording of a conservation easement (the only activities

authorized by the permit) may actually benefit his environmental

interests. Mr. Stevely asserted that the trimming of mangroves

would adversely affect his in terests, but the permit, as

proposed, does not authorize mangrove impacts. He speculated

that the proposed placement of buoys along the shoreline might

attract inexperienced boaters to the area, but admitted that

good channel marking is one of the best wa ys to protect

seagrasses. Moreover, the installation of buoys requires a

separate permit from the Florida Fish and Wildlife Conservation

Commission (FFWCC). Presumably, a point of entry to contest

that action will be provided by the agency.

9. Mr. McCla sh is a resident of Bradenton who uses the

waters in the vicinity of the project site for fishing,

crabbing, boating, and wildlife observation. He contends the

informational buoys will attract inexperienced boaters to the

area, who will harm the seagrasse s. He is also concerned that

if the application is approved, other ERPs may be issued in the

future and their impacts could potentially be offset by the

purchase of credits from the Project.

The Project Site

10. The property designated to become the miti gation bank

is a 260.80 - acre site located in western Manatee County, west of

El Conquistador Parkway and 75th Street West, and an adjacent

unsurveyed portion of Sarasota Bay, an Outstanding Florida Water

(OFW), Class II Waters. Around half of the site is adjacent to

agricultural lands that may be developed with a mixed use

residential/commercial project. The other half is contiguous

with Sarasota Bay and/or existing conservation lands. The

project site has more than two miles of shoreline making it the

l argest continuous mangrove shoreline along Sarasota Bay. The

site is near other properties with high ecological value, such

as Emerson Point, Robinson Preserve, Neal Preserve, Tidy Island,

Sister Keys, and Legends Bay. All of these properties are

conserv ation lands. Long Bar has a sufficient real property

interest to conduct the proposed activities.

11. Based on historical aerial photography, the area

encompassing the Project site has remained essentially

undeveloped since 1944, with the exception of mosquito ditching

that was conducted in the northwestern portion of the property

from the 1940s to the 1970s, and agricultural ditching that has

occurred adjacent to and within some portions of the site.

12. The site is dissected by four, approximately 3 0 - foot -

wide strips of land owned by Manatee Fruit Company (MFC), which

are excluded from the credit assessment. However, Long Bar has

sufficient ownership interest in the MFC strips of land and will

be required to maintain the area free of debris and nuis ance and

exotic vegetation.

13. The Town of Longboat Key also has a 30 - foot - wide

easement in the southeastern portion of the site, which will be

preserved, enhanced, and maintained similar to the adjacent area

of the project site , but is excluded from th e credit

assessment.

14. The project site consists of privately - owned submerged

Sarasota Bay bottomlands that are dominated by seagrasses;

mangrove swamps; mangrove hedges; areas of salt marsh/saltern;

coastal freshwater herbaceous wetlands; and areas of coastal

uplands (maritime hammock).

15. The seagrass areas are dominated by shoal grass with

patches of turtle grass in deeper pockets. The mangrove areas

are predominately black mangroves, mixed with red mangroves

closer to the shoreline and with whit e mangroves in the more

landward mangrove areas. Red mangroves increase in dominance in

the vicinity of the mosquito ditches in the northwestern portion

of the site, and white mangroves increase in dominance in the

formerly disturbed portions of the site. The salt marsh/saltern

area is generally open and sandy, but supports some herbaceous

vegetation, such as buttonwood, glasswort, and saltwort. The

coastal freshwater herbaceous wetlands and much of the coastal

uplands are currently dominated by a near m onoculture of

invasive exotic Brazilian Pepper, though areas of intact

maritime hammock remain. Brazilian Pepper is present in the

ecotone areas (the transition area between two communities)

between the freshwater herbaceous and mangrove swamp assessment

areas. There are also spoil mounds within the mangrove swamp

assessment areas.

Mitigation Bank Permits

16. Section 373.403(19), Florida Statutes, defines a

mitigation bank as "a project permitted under Section 373.4136,

F.S. undertaken to provide for the withdrawal of mitigation

credits to offset adverse impacts authorized" by an ERP issued

under Part IV, chapter 373. A mitigation bank permit is a type

of ERP. See Fla. Admin. Code R. 62 - 330.301(3).

17. Section 373.4136(1) authorizes the Department an d

water management districts to require an ERP to establish,

implement, and operate a mitigation bank. A bank acts as a

repository for wetland mitigation credits that can be used to

offset adverse impacts to wetlands that occur as the result of

future ERP projects. A bank is designed to "enhance the

certainty of mitigation and provide ecological value due to the

improved likelihood of environmental success associated with

their proper construction, maintenance, and management," often

within larger, contig uous, and intact ecosystems.

18. Mitigation banks are intended to "emphasize the

restoration and enhancement of degraded ecosystems and the

preservation of uplands and wetlands as intact ecosystems." Id.

Therefore, the Department and the water managem ent districts are

directed to participate in and encourage the establishment of

mitigation banks. Id.

19. A mitigation bank is to be awarded a number of

mitigation credits by the permitting agency. § 373.4136(4),

Fla. Stat. A mitigation credit is a "st andard unit of measure

which represents the increase in ecological value resulting from

restoration, enhancement, preservation, or creation activities."

Fla. Admin. Code R. 62 - 345.200(8). The number of credits must

be "based upon the degree of improvemen t in ecological value

expected to result from the establishment and operation of the

mitigation bank as determined using a functional assessment

methodology." § 373.4136(4), Fla. Stat. In this case, the

Department is proposing to issue 18.01 credits.

Mit igation Service Area (MSA)

20. Rule 62 - 342.600 requires the establishment of a MSA

for a mitigation bank. An MSA is a geographical area within

which adverse impacts may be offset by the bank credits. A

single MSA is proposed for the Project, covering bo th freshwater

and saltwater credits. The MSA includes portions of Charlotte,

Manatee, and Sarasota Counties within the South Coastal Drainage

Basin and portions of the Manatee River Basin west of Interstate

75 and the portion of the Tampa Bay Drainage Bas in located west

of Interstate 75 and south and west of Interstate 275. Credits

are not allowed for use outside the MSA, except as provided for

by section 373.4136(6)(d).

Criteria for a Mitigation Bank

21. Besides statutory criteria in section 373.4136(1) , a

maze of Department rules applies to the creation of a mitigation

bank. Pertinent to this case, rule 62 - 342.400 sets forth

criteria specifically applicable to a mitigation bank.

Rule 62 - 330.301 sets forth criteria for the issuance of an ERP,

while ru le 62 - 330.302 establishes additional ERP criteria that

form the basis for the public interest test. In the Joint Pre -

hearing Stipulation, Petitioners agree that only the criteria in

rule 62 - 330.301(1)(d) and (f), rule 62 - 330.302(1)(a)2., 4.,

and 5., and r ule 62 - 342.400(1)(a) - (f) are at issue. Petitioners

also agree that Long Bar has provided reasonable assurance in

regards to all requirements of financial responsibility.

The Project

22. Long Bar submitted to the Department its application

for a permit o n September 12, 2016. After additional

information was submitted, the application was deemed complete

on December 16, 2016. See Fla. Admin. Code R. 62 - 342.450.

23. The majority of the site is mangrove swamp and

privately owned submerged seagrass bottoml ands that are proposed

for preservation only. The site also contains areas of coastal

freshwater marsh and coastal uplands that are currently degraded

by invasive exotic vegetation which will be enhanced through

removal of invasive exotic vegetation, plan ting of desirable

vegetation, and implementation of a perpetual management plan.

No wetland creation or dredging or filling activities are

proposed for the Project.

24. The Project has the potential to generate several

credit types, including seagrass, m angrove swamp, mangrove

hedge, salt marsh/saltern, and freshwater herbaceous credits.

The credit release schedule provides for an initial credit

release upon recordation of a conservation easement and

establishment of financial assurance mechanisms, follo wed by a

series of potential credit releases based on satisfactory

completion of specified mitigation activities, and a final

credit release once all success criteria are met.

25. Prior to the release of credits, the site will be

preserved by a conservati on easement in favor of the Department

and Southwest Florida Water Management District. Long Bar will

establish financial assurance performance bonds for construction

and implementation and perpetual management. Financial

assurance is required to ensure the Project reaches success, it

remains in compliance, and the perpetual management activities

have a dedicated funding source.

26. In addition to protection provided by the conservation

easement, Long Bar proposes implementation of a Seagrass

Information al Buoy Placement Plan (Plan) in an effort to provide

additional protection to the submerged seagrass beds within and

in the vicinity of the Project. The Plan contemplates the

installation of non - regulatory seagrass information buoys at

approximately the three - foot bathymetric contour along the

Project site, and which follows the path of the traditional

unmarked navigational channel where they can be readily seen.

The buoys will inform boaters of the presence of seagrasses

surrounding the Project site, wh ich support significant

estuarine habitats and can be harmed or destroyed from vessel

groundings or prop scarring. Installation of the buoys will

provide a significant public benefit in that it should

significantly reduce or eliminate prop scars within th e seagrass

beds along the project site. Good channel marking is one of the

best ways to protect seagrasses from prop scarring. There is no

credible evidence that signage will attract inexperienced

boaters who will damage the seagrasses in the area.

27. The permit does not authorize the installation of the

buoys. In order to implement the Plan, Long Bar must apply to

the FFWCC for a Uniform Waterways Markers in Florida Waters

permit. The Plan must be implemented prior to credit release.

28. No mangrove trimming is authorized by the permit.

Pursuant to a Conceptual Mangrove Trimming Plan, attached to the

permit as Attachment A, Long Bar has reserved the right to trim

approximately 30 percent of the onsite mangrove acreage to a

minimum height of 12 feet, as measured from the substrate. No

trimming will be allowed within the Project's mangrove swamps

that are greater than 500 feet in width from the shoreline, and

no trimming can result in fragmentation of the remaining intact

mangrove forest into more tha n four individual fragments. Prior

to the initial release of credits, Long Bar must develop and

submit a Final Mangrove Trimming Plan and modify the permit to

substitute the final plan for the conceptual plan, adjust the

assessment area configuration and acreages, and recalculate the

total potential mitigation credits.

29. Any mangrove trimming must be conducted by a licensed

professional mangrove trimmer and take place under a mangrove

trimming permit issued pursuant to section 373.327 that may be

issu ed at some time in the future by the Department if

applicable criteria are met. Long Bar's reserved right to

conduct limited mangrove trimming was accounted for in the

credit scores.

30. Many of the current communities on the site are

generally similar t o the types of communities that would have

been present historically, but have been adversely affected by

invasion of nuisance and exotic vegetation, including Brazilian

Pepper and Australian Pine. As such, the Project also involves

a number of enhancemen t activities on the site. Approximately

17.35 acres of degraded coastal freshwater marsh will be

enhanced by removing invasive exotic vegetation and replanting

with appropriate native vegetation. Approximately 13.13 acres

of degraded coastal uplands will be enhanced by removing

invasive exotic vegetation and replanting with appropriate

native vegetation. Approximately 6.44 acres of relatively

intact coastal uplands will be enhanced by removing nuisance

vines and exotic vegetation. All areas of preserved mangroves

and salt marsh/saltern will be treated to remove existing low

levels of nuisance and invasive exotic vegetation. Upon

implementation and planting, the permit requires Long Bar to

conduct "time zero" monitoring to establish a baseline for use

in future monitoring events to determine whether success

criteria have been achieved.

31. Although the proposed activities are expected to

maintain and enhance site conditions in perpetuity, Long Bar

will employ other strategies, based on continual evaluati on of

environmental data collected from the site, to ensure the goals

of the Project continue to be met in perpetuity.

32. Long Bar will implement a Security Plan to take all

measures necessary to ensure the integrity of the Project is

upheld in perpetuit y. Large hole 50 - inch high hog fencing will

be installed at the Project boundary where it interfaces with

offsite areas to ensure separation and protection from any

future development on adjacent lands. Fencing will act as a

barrier to deter trespassing, but will still allow wildlife to

move across and into the Project site. Conservation easement

signage will also be installed at a minimum of every 300 feet,

and at every bank boundary turn along the fence line. The buoy

plan is also part of the Security Plan. Long Bar will conduct

quarterly inspections of the fencing and signage, as well as

Project site lands, and will repair or replace fencing as soon

as the need is discovered. Any trash and other debris will be

removed during site inspections either by hand or by a method

that minimizes disturbances to Project lands. If habitat

impacts are discovered during an inspection, adaptive management

actions will be implemented.

33. After the Project's final success criteria are met,

the Perpetual Management Plan will ensure that the Project is

managed by Long Bar in a manner that ensures all permit

conditions are maintained. The Perpetual Management Plan

includes quarterly inspections of the Project site, including

security measures.

The Calculation of Cred its

34. In 2004, the Department adopted chapter 62 - 345, the

Uniform Mitigation Assessment Method (UMAM) rule, which provides

a standardized procedure for assessing the functions provided by

wetlands and other surface waters, the amount those functions

are decreased by a proposed project, and the amount of

mitigation necessary to offset that loss. UMAM is the sole

means for determining the amount of mitigation credits to be

awarded to mitigation banks and applied to Long Bar.

35. When applying UMAM, rea sonable scientific judgment

must be used. Therefore, even though UMAM is a standardized

procedure, UMAM is not a precise assessment, and in the exercise

of reasonable scientific judgment, two scientists can arrive at

different results.

36. In general t erms, the UMAM analysis consists of two

parts. Part I is a qualitative characterization of the

property, which divides the property into assessment areas.

Part II assigns mitigation bank credits to those areas based on

scoring criteria established in UMA M.

37. The mitigation proposal was assessed by the Department

using UMAM. The Department determined that the Project had the

potential to generate a total of 18.01 credits. These credits

are differentiated as 7.38 for seagrass - dominated submerged

botto mlands, 0.23 for salt marsh/saltern, 7.07 for mangrove

swamps, 0.68 for trimmed mangrove hedge, and 2.65 for coastal

freshwater marsh.

38. The environmental communities present at the site are

subdivided into 47 different assessment areas. The assessment

areas were established by Long Bar's expert, Mr. Hoffner, who

has worked on the Project since 2014 and has spent hundreds of

hours evaluating the site. The assessment areas were generally

grouped into seagrass, mangrove, saltwater, salt marsh,

freshwater marsh, and uplands, and then sub - assessed based on

their proximity to different habitats and different activities

within the bank.

39. Assessment area boundaries were based upon aerial

photography interpretation, the Florida Land Use, Cover and

Forms C lassification System, habitat map, Natural Resources

Conservation Service soil maps, site inspections, formal

wetlands jurisdiction determination, surveys performed by

professional land surveyors, field verification, and reasonable

scientific judgment. Th e record shows that ecotone community

boundaries in the environment do not often have distinct lines

of demarcation and two adjacent communities can be identified as

unique assessment areas and yet have ecotone areas that share

characteristics of both comm unities. For example, Brazilian

Pepper is present within the ecotone areas between the mangrove

and freshwater marsh assessment areas.

40. The Department's expert, Mr. Rach, verified the

boundaries of the bank and assessment areas both in the field

and t hrough aerial photographs and descriptions provided by the

applicant. Mr. Rach reiterated that the determination of

assessment areas is not an exact science and requires the use of

scientific judgment. He determined that Long Bar provided

sufficient info rmation for each assessment area to be evaluated

under the second part of the UMAM analysis and that they provide

an appropriate frame of reference to use in the Part II

evaluation.

41. While Petitioners' expert, Mr. Hull, disagreed with

the assessment ar ea boundaries, he agreed that UMAM is not an

exact science. He conceded that he was not sure whether he

visited every assessment area on the site, and he was unable to

provide an explanation of where he believed each specific

boundary should be located.

4 2. Petitioners did not establish by a preponderance of

the evidence that the assessment areas are in contravention of

Department rules.

43. The Department's scoring of the Project was determined

by review of the UMAM scores provided by Long Bar, review o f

available information provided, numerous discussions with Long

Bar, and field work. The Department's summary of the credit

evaluation for each of the 47 assessment areas is contained in

Condition 11 of the permit and is accepted as being the most

persua sive on this issue. The actual scores for each assessment

area are contained in Exhibit H of the draft permit.

44. While Mr. Hull disagreed with the scoring of the

project, the difference between his and Long Bar's numbers are a

reflection in the differe nce in the application of reasonable

scientific judgment.

45. Petitioners failed to prove by a preponderance of the

evidence that the Department's determination that the project

could generate 18.01 credits was incorrect.

Petitioners' Objections

46. In their PROs, Petitioners raise three broad

objections. First, they contend that no credits should be

awarded to Long Bar for seagrasses, or that a much smaller

number is appropriate. Second, they contend fewer credits

should be awarded for areas where ma ture mangroves that are

40 to 50 feet in height could be trimmed to 12 feet simply to

provide a view for future residents of the adjacent upland

residential development conceptually proposed by Long Bar.

Finally, they contend the site is bisected by a 100 - foot gap

that is excluded from the bank because Long Bar intends to allow

future access from the planned adjacent upland residential

development to the shoreline. They argue that by creating this

gap, Long Bar fails to maintain an intact ecosystem. Give n

these considerations, Suncoast and FISH contend that no more

than 4.18 mitigation credits shoul d be awarded, while

Mr. McClash argues that the application should be denied.

47. As to the first issue, Petitioners generally contend

that in the seagrass a reas, the bank is focused on preservation

only, and not restoration, and therefore no additional

protection or functional lift will be provided for any seagrass

assessment areas. To begin with, preservation is a goal

expressly included in the UMAM rule, w hich emphasizes

preservation of undegraded areas and restoration of degraded

systems over alteration of existing landscapes to create

artificial wetlands. The proposed conservation easement

increases protection to the wetlands and other surface waters in

the site by preventing structures (such as docks or piers)

within the seagrass assessment areas. If the site is not

preserved, it is likely to be used to access Sarasota Bay from

the uplands. As previously found, there will also be

enhancement activities in adjacent assessment areas. In short,

the steps being proposed by Long Bar provide additional

protection to the seagrasses. The UMAM seagrass score is

appropriate.

48. As to the second issue, no mangrove trimming is

authorized by the permit. Long Ba r has, however, reserved the

right to modify the permit to trim approximately 30 percent of

the onsite mangrove acreage to a minimum height of 12 feet, as

measured from the substrate. The potential trimming was

properly accounted for in the UMAM scores. If Long Bar chooses

not to implement the proposed trimming, it would likely receive

more credits. Notably, no trimming can result in fragmentation

of the remaining intact mangrove forest into more than four

individual fragments. And prior to the release of credits, Long

Bar must develop and submit a final mangrove trimming plan and

modify the permit, adjust the assessment area configuration and

acreages, and recalculate the total potential mitigation

credits. Petitioners did not prove by a preponderance of the

evidence that mangrove trimming affects the Department's

assessment of the number of credits to be awarded.

49. Finally, the exclusion of a 100 - foot gap from the

conservation easement does not diminish the value of the bank as

an intact system as a whole. While this area will not be

included in the recorded plans, this will not fragment an intact

ecosystem. No construction is proposed in the gap, and current

Manatee County regulations do not allow for dredging in this

area. Therefore, wildlife u tilizing the site will be able to

continue to utilize the excluded area and traverse the gap,

regardless of the lines drawn on a set of plans. The net effect

of the Project is to preserve approximately two miles of intact

shoreline. The more persuasive e vidence supports a finding that

the 100 - foot wide strip does not affect the overall suitability

of the site as a mitigation bank. Petitioners did not prove by

a preponderance of the evidence that the so - called "gap" impacts

the number of credits to be awa rded.

Compliance with Applicable Criteria

50. The preponderance of the evidence supports a finding

that Long Bar has satisfied all criteria in rule 62 - 330.301 for

the issuance of an ERP.

51. The preponderance of the evidence supports a finding

that Long Bar has established that the Project is clearly in the

public interest, as required by rule 62 - 330.302(1).

52. The preponderance of the evidence supports a finding

that Long Bar has satisfied all criteria for establishing a

mitigation bank, as required by rule 62 - 342.400 .

CONCLUSIONS OF LAW

53. Suncoast and FISH allege standing to initiate this

proceeding under chapter 120 and section 413.412(6).

Respondents have stipulated that the facts established by the

two organizations provide standing under sec tion 403.412(6).

54. For an association to establish standing under

section 120.57(1) when acting solely as a representative of its

members, it must demonstrate that a substantial number of its

members, although not necessarily a majority, are substant ially

affected by the challenged action, that the subject matter of

the challenged action is within the association's general scope

of interest and activity, and that the relief requested is of a

type appropriate for an association to receive on behalf of its

members. See , e.g. , St. John's Riverkeeper, Inc. v. St. Johns

River Water Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla. 5th DCA

2011); Fla. League of Cities, Inc. v. Dep't of Envtl. Reg. , 603

So. 2d 1363 (Fla. 1st DCA 1992). Suncoast and FISH have failed

t o quantify the number of members that reside in the area of the

Project that might reasonably be expected to be affected by the

proposed activities. Therefore, they have no standing under

chapter 120.

55. Mr. McClash alleges he has standing under chapter 120

as a person whose substantial interests are affected by the

proposed issuance of the permit. Here, the evidence shows that

Mr. McClash is concerned with activities contemplated, but not

authorized, by the permit, and future ERPs that may have impacts

that could potentially be offset through the purchase of credits

from the Project. These concerns will not result in a direct

injury or place Mr. McClash in an immediate danger of sustaining

a direct injury as a result of the agency action. His concern

is with future permit impacts, which are too speculative and

remote to give rise to standing under chapter 120.

56. Petitioners have challenged the issuance of a

mitigation bank permit issued under chapter 373. Therefore,

section 120.569(2)(p) is applica ble. Under this provision, the

permit applicant must present a prima facie case demonstrating

entitlement to the permit. Thereafter, a third party

challenging the issuance of the permit has the burden "of

ultimate persuasion" and the burden "of going for ward to prove

the case in opposition to the . . . permit." If the third party

fails to carry its burden, the applicant prevails by virtue of

its prima facie case.

57. Issuance of the permit is dependent upon there being

reasonable assurance that the mit igation bank will meet

applicable statutory and regulatory standards. § 373.4136(1),

Fla. Stat.

58. Reasonable assurance means "a substantial likelihood

that the project will be successfully implemented." See Metro.

Dade Cnty. v. Coscan Fla., Inc. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992). Reasonable assurance does not require absolute

guarantees that the applicable conditions for issuance of a

permit have been satisfied.

59. Long Bar made its prima facie case of entitlement to

the permit. Therefore, th e burden of ultimate persuasion is on

Petitioners to prove their case in opposition to the permit by a

preponderance of the competent and substantial evidence.

Having failed to do so, Long Bar must prevail.

60. In summary, Long Bar has provided reasonab le assurance

that all relevant criteria for the issuance of an ERP and

establishment of a mitigation bank have been satisfied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Envi ronmental Protection

enter a final order approving the issuance of Mitigation Bank

Permit No. 0338349 - 002 to Long Bar.

DONE AND ENTERED this 6th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

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 H earings

this 6th day of March , 2018 .

COPIES FURNISHED:

Joseph McClash

711 89th Street Northwest

Bradenton, Florida 34209 - 9692

(eServed)

Ralf Gunars Brookes, Esquire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

(eServed)

Douglas P. Manson, Esquire

Manson Bolves Donaldson, Varn P.A.

Suite 300

109 North Brush Street

Tampa, Florida 33602

(eServed)

Marianna Sarkisyan, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Talla hassee, Florida 32399 - 3000

(eServed)

Chris R. Tanner, Esquire

Manson Bolves Donaldson, Varn P.A.

Suite 300

109 North Brush Street

Tampa, Florida 33602

(eServed)

Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florid a 34205 - 4948

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Stat ion 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

(eSe rved)

Amy Wells Brennan, Esquire

Manson Bolves Donaldson Varn, P.A.

Suite 300

109 North Brush Avenue

Tampa, Florida 33602 - 2637

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.