99-002215 Sarah H. Lee vs. St. Johns River Water Management District And Walden Chase Developers, Ltd. Status: Closed Recommended Order on Wednesday, September 1, 1999.

Summary: Applicant`s presentment of satisfactory assurances dictates that a permit should be issued, subject to conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH H. LEE, )

)

Petitioner, )

)

vs. ) Case No. 99-2215

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and )

WALDEN CHASE DEVELOPERS, LTD., )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the

Division of Administrative Hearings by its duly-designated

Administrative Law Judge, Don W. Davis, on July 26-28, 1999, in

St. Augustine, Florida.

APPEARANCES

For Petitioner, Sarah H. Lee:

Deborah Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082

David J. White, Esquire

Suite 100

4804 Southwest 45th Street

Gainesville, Florida 32068

For Respondent, Walden Chase Developers, Ltd.:

Marsha Parker Tjoflat, Esquire

Rogers, Towers, Bailey,

Jones & Gay, P.A.

1301 Riverplace Boulevard

Suite 1500

Jacksonville, Florida 32207

John G. Metcalf, Esquire

Pappas, Metcalf, Jenks, Miller

& Reisch

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

For Respondent, St. Johns River Water Management District:

Veronika Thiebach, Esquire

Mary Jane Angelo, Esquire

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

STATEMENT OF THE ISSUE

Whether the proposed Walden Chase development (the

"Project"), is consistent with the standards and criteria for

issuance of an Environmental Resource Permit (" ERP") as set forth

in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.

PRELIMINARY STATEMENT

On January 22, 1999, Walden Chase Developers, Ltd. (" Walden

Chase") applied to the St. Johns River Water Management District

("District") for a permit to construct and operate a surface

water management system to serve 279 acres in St. Johns County

(the "Permit"). Issuance of the Permit is subject to the ERP

rules contained in Chapter 40C-4.301 (Conditions for Issuance of

Permits) and 40C-4.302 (Other Conditions for Issuance of

Permits), Florida Administrative Code (collectively, the " ERP

Criteria").

On March 23, 1999, the District notified Petitioner of its

intent to issue the Permit. On April 13, the District Governing

Board held a public hearing to determine whether to issue the

Permit. After presentations by Petitioner, Applicant and

District staff, the Board determined that the Project satisfied

the ERP Criteria and affirmed its intent to grant.

On April 19, Petitioner filed a Petition for Administrative

Hearing objecting to issuance of the Permit. On May 14, the

District forwarded the case to the Division of Administrative

Hearings, and the matter was subsequently set for final hearing

on July 26-28, 1999.

In the Prehearing Stipulation, Petitioner alleges that

Walden Chase has not provided reasonable assurance that the ERP

Criteria have been met, and that therefore Walden Chase is not

entitled to issuance of the ERP. Walden Chase and the District

allege that the ERP Criteria have been met and that Walden Chase

is entitled to issuance of the ERP, subject to certain general,

special, and other conditions specified in the technical staff

report.

At the final hearing Petitioner presented the testimony of

three fact witnesses: Sarah H. Lee, Sarah Claire Lee, Helen

Cortopassi, and two expert witnesses: Laurie MacDonald, an

expert in wildlife zoology and conservation biology; and Linda

Conway Duever, an expert in upland and wetland ecology, natural

area evaluation and management, and conservation planning.

Petitioner also presented testimony of two witness by deposition:

Mark Brown, an expert in wetland ecology, wetland systems,

ecological economics, site planning and environmental design, and

environmental impact assessment; and Paul Moler, an expert in

wildlife biology, specifically reptiles and amphibians. In

addition to the deposition, Petitioner presented an additional

six exhibits. All exhibits were admitted without objection.

At the final hearing Walden Chase presented the testimony of

one fact witness, Raymond O’Steen, and three expert witnesses:

Doug Miller, an expert in civil engineering, including site

layout, and in the permitting of surface water management

systems; Ka Tai Peter Ma, an expert in civil engineering; and

Byron Peacock, an expert in wetlands, wildlife ecology, and

environmental permitting. Additionally, Walden Chase presented

42 exhibits.

At the final hearing the District presented three expert

witnesses: Walter Esser, an expert in wetland and wildlife

ecology, mitigation planning, wetland delineation, and ERP

permitting and regulation; Everette Frye, an expert in water

resource engineering and water management permitting; and

Jeffrey Elledge, an expert in the permitting requirements and

procedures at the Water Management District, water resource

engineering, civil engineering, hydrology, water quality, and

storm water management. The District also offered five exhibits;

four exhibits were admitted without objection, and the fifth was

not admitted pursuant to objection by Petitioner.

The Transcript of the final hearing was filed on August 6,

1999, and the parties were allowed ten days in which to submit

proposed recommended orders. Each party timely filed a Proposed

Recommended Order.

FINDINGS OF FACT

The Project

1. The Project will allow construction and operation of a

proposed surface water management system ("System") designed to

serve a 258-acre residential community and an adjacent 21-acre

commercial out parcel (the "Project"). The Project is part of a

larger proposed development, the "County Road 210 PUD," that

contains additional areas that are not owned by Walden Chase and

are not part of the Project.

2. The Project is located east of U.S. 1, a federal highway

with average daily traffic of 16,500 cars per day; along the

western boundary is light residential development. The northern

boundary of the property is County Road 210, with daily traffic

of about 8,500 cars per day. To the south is Nease High School,

and to the east is Quail Ridge Farm subdivision ("Quail Ridge"),

a major development, and Christ Episcopal Church. The Project

property is bifurcated by a major overhead power line, including

an associated fill road which runs through the middle of the

property.

3. The Project consists of approximately 565 homes, a

recreation area (including ball fields) located in the center of

the Project, and the System. The Project is being developed by

Walden Chase Developers, Ltd., a limited partnership formed in

1999 for the purpose of developing the Project. The budget for

the Project is $16,000,000, which is being financed through

investors, equity, and an acquisition and development loan.

Raymond O’Steen, president of Walden Chase’s Managing Partner,

Florida First Coast Development Corporation, testified that he is

responsible for ensuring that the Project is constructed in

compliance with the Permit conditions. To ensure such

compliance, he will supervise construction, hire professional

engineers to make monthly inspections, and cooperate with agency

staff inspecting the Project. During construction, all

construction equipment will be maintained to ensure that no oils

and greases will be discharged into wetlands.

4. The long-term maintenance entity will be the Walden

Chase Homeowners Association, Inc. (the " HOA"). The HOA has

authority to: ( i) operate and perform routine custodial

maintenance of the surface water management system;

(ii) establish rules and regulations; (iii) assess the cost of

operation and maintenance, and enforce the collection of such

assessment; and (iv) exist in perpetuity. If the HOA is

dissolved, then operating responsibility will be transferred to a

suitable entity acceptable to the District.

5. Walden Chase has entered into an agreement with the

owner of the 21-acre commercial out parcel (which is to be served

by the System), whereby the owner of that outparcel will pay a

pro-rata share of the operation and maintenance costs.

Cross-easements have been recorded to that effect.

6. The outfall from the storm water management system is

through a ditch to the east of the Project. Walden Chase has

legal authority to use that ditch. The ditch will be maintained

by HOA.

7. No septic tanks are planned for the Project.

The Surface Water Management System

8. The System is primarily a wet detention type of storm

water treatment system, composed of a series of interconnected

lakes that discharge at the southeastern portion of the property.

Wet detention systems contain ponds with permanent pools of water

with structures limiting discharge from the System so that

pollutants from the storm water gradually settle out. The System

was designed to capture 2.5 inches of runoff from the impervious

area.

9. The receiving bodies of water for the System are Twelve

Mile Swamp and Durbin Creek, which are classified as Class III

waters, pursuant to Rule 61-400, Florida Administrative Code.

Neither Durbin Creek nor Twelve Mile Swamp are classified as

Outstanding Florida Waters, pursuant to Rule 62-4.242(2), Florida

Administrative Code. The System does not discharge to a

land-locked lake.

10. The System is designed to accommodate a 25-year/24-hour

storm. The System is designed to provide replacement storage

within 14 days following a storm event. The System is not

located within a 10-year flood plain, nor within a flood way.

The System has been designed so that it will not cause a

reduction in the 10-year flood plain, nor will it cause a net

reduction in flood conveyance capabilities within a flood way.

11. To ensure that the System will not cause sediment

transport, the outfall ditch is lined with concrete, and a

sediment pond will be constructed at the end of the ditch to

collect any type of sand or silt. Additionally, the banks of the

System will be stabilized and will be seeded and mulched to

prevent erosion. A detailed erosion and sediment control plan

has been incorporated in the design, including the use of silt

fencing and hay bales during construction.

12. The parties stipulated that:

excluding backyard swales and the diversion

of storm water from Quail Ridge subdivision .

. . the system is designed in accordance with

Rule 40C-42.026(4), Fla. Admin. Code, the

design criteria for wet detention systems.

13. In addition to the wet detention component of the

System, water quality treatment is provided by draining storm

water run-off from the backyards, across vegetative natural

buffers, and then into wetlands. The width of vegetative natural

buffers needed to provide the required water quality treatment

was calculated using the District's required methodology. Based

on these calculations, vegetative natural buffers of a minimum of

15 feet and an average of 25 feet are provided around all

wetlands which will remain on site. On two wetlands, larger

buffers of 25.65 feet will be provided to ensure adequate water

quality treatment. These buffers are consistent with the

calculated requirements for vegetative natural buffers.

Diversion of Surface Waters

14. The run-off from approximately 47 acres currently

discharges onto the Walden Chase property from Quail Ridge, the

subdivision located to the east of the Project. Currently, the

water discharges from the Quail Ridge storm water treatment pond

into a ditch located in the power line easement which bifurcates

the Walden Chase property. Under current conditions, the Quail

Ridge pond does not discharge into the wetland systems on-site.

15. After development, the Quail Ridge discharge will be

diverted into a large wetland system on-site which extends over

and onto Petitioner’s property ("Wetland 8"). This diversion

will replace surface water from 42 acres that currently discharge

into Wetland 8, but after development, will be re-routed through

the Project's System. The run-off volume directed to Wetland 8

will be approximately the same after development as

pre-development conditions. The surface water hydrology of the

wetland system will also be maintained.

16. The diversion of the Quail Ridge discharge does not

require modification of the Quail Ridge storm water system, but

rather, only modification of the drainage patterns on the Project

site. The diversion will provide flood control benefits to Quail

Ridge because the outfall from the Quail Ridge storm water

treatment pond will be improved. Even if the diversion were not

to take place, there will be no adverse impacts to the hydrology

of Wetland 8 because that wetland is primarily hydrated through

groundwater sources. If the diversion were not to take place,

Walden Chase would monitor Wetland 8 to ensure that the hydrology

was not adversely affected, and institute appropriate remedial

measures if necessary to protect its functions and values.

17. The System will also divert some surface waters that

currently drain into other wetlands located on the Project site.

The diversion will redirect the flow of water into treatment

ponds to meet the ERP Criteria for water quality treatment. The

run-off from portions of the houses and the back yards will

continue to drain into the wetlands. The impacts from any

diversion should be minimal because the wetlands are primarily

hydrated through rainfall and the presence of groundwater under

the wetlands. To ensure that the diversion will not

significantly adversely affect the wetlands, Walden Chase will

monitor the wetlands on-site; if there is significant adverse

effect experienced, then Walden Chase will undertake appropriate

remedial action.

Diversion of Groundwater

18. The wetlands which will remain after development are

primarily hydrated by on-site groundwater, which is part of the

area-wide surficial aquifer groundwater system. The soil types

on the property indicate that it is not an aquifer recharge area,

so no adverse impacts to aquifer recharge are anticipated.

Additionally, due to the characteristics of the proposed

residential development, water will be able to percolate into the

soil, and thence into the groundwater. For these reasons, there

will not be a significant adverse impact to the groundwater

source for the wetlands.

19. Walden Chase is undertaking additional measures to

ensure the System will not adversely draw down groundwater. Two

of the storm water facilities near wetlands were lined with clay

materials to ensure they would not lower the groundwater

elevations below the wetlands. Groundwater will not be lowered

more than an average of three feet across the site nor more than

five feet at any one location.

20. Of particular concern to Petitioner were possible

effects to the hydrology of Wetland 8, a large wetland syste m

that extends onto her property. However, the source of seepage

to Wetland 8 is primarily a groundwater source, not surface

water. Rainwater percolates through the ground and then travels

laterally through the soil to the seepage slope. The Project

will not significantly reduce the groundwater source because the

percolation area is to be maintained.

Water Quantity

21. In permitting wet detention-type systems, the maximum

flow of water discharged (the "peak rate of discharge") from the

system is analyzed to ensure that the natural drainage conveying

water off-site is not overtaxed. Under pre-development

conditions, the peak rate of discharge from the Project site is

52 cubic feet per second. After development, the peak rate of

discharge will be 49 cubic feet per second. The post-development

peak rate of discharge will not exceed the pre-development peak

rate of discharge.

22. The Project roads have been designed to be flood-free,

pursuant to the requirements of the applicable St. Johns County

regulations. The first floor elevations of buildings will be

located above the 100-year flood elevation, as is required by

St. Johns County.

23. The Project is not located on a water course. The

upstream drainage area for the Project is significantly less than

five square miles.

Water Quality

24. Before discharge, storm water from the Project is

treated by the wet detention system and the vegetative natural

buffers. The wet detention system slows water to allow time for

pollutants to settle out. Also, treatment processes are provided

through "nutrient uptake" by resident algae that live in the

ponds, and by adsorption and oxidation of pollutants on the pond

slopes and bottom. The proposed vegetative natural buffers treat

the run-off from the back yards prior to discharge into wetlands.

25. The District has determined that the storm water

treatment system for Quail Ridge is not currently in compliance

with the District's design criteria, but no evidence was

presented that the quality of discharge from Quail Ridge is out

of compliance with water quality standards. To ensure that the

water diverted from Quail Ridge into Wetland 8 complies with

state water quality standards, Walden Chase will undertake a

three-step analysis. First, if the Quail Ridge storm water

system is brought into compliance with its design, then the water

quality being discharged from the system will presumptively meet

water quality standards and the diversion can take place.

Second, if the Quail Ridge system is not brought into compliance

with the design criteria, then Walden Chase will sample the water

quality of water discharging from Quail Ridge: if that water

meets water quality standards, then the diversion can take place.

Third, if the Quail Ridge system is not in compliance and the

water quality discharging from that system does not meet water

quality standards, then the diversion will not take place. In

that instance, the currently existing discharge will be

maintained until water quality standards are met, and Wetland 8

will be monitored to ensure that the surface water diversions

caused by the Project will not adversely affect that wetland.

Environmental Considerations

26. The Project site includes pine flatwoods, scrubby

flatwoods, sandhills, pine plantations, cypress swamp, wet pine

flatwoods, two borrow pits, and several drainage ditches. The

wetlands on site total 34.57 acres. There are also 1.27 acres of

upland-cut drainage ditches, a 3.9 acre borrow pit, and

a 0.18-acre borrow pit adjacent to Wetland 5.

27. The following wetlands and drainage ditches will be

preserved or otherwise not be disturbed by the Project: 1, 3, 4,

8, 9, 13, 15, 16, and 17. A total of 29.29 acres of wetlands

will be preserved through imposition of a conservation easement,

and 1.94 acres of wetlands will remain undisturbed.

28. None of the wetlands on site are high quality. The

following wetlands and other surface waters are of low or

marginal quality or do not otherwise require mitigation of

impacts: 10, 14, 18, 20, and 21. With the exception of three

areas (the 3.9-acre borrow pit, the 0.18-acre borrow pit adjacent

to Wetland 5, and a small borrow pit within Wetland 8), the

wetlands on site are all "ephemeral," meaning that they dry-up

periodically during the year.

Wetland Impacts

29. Certain of the wetlands are considered "isolated,"

which means that they are completely surrounded by uplands. In

considering impacts to isolated wetlands, the District rules

distinguish between isolated wetlands of less than 0.5 acres and

those 0.5 acres or larger. Isolated wetlands of less than 0.5

acres are: Wetlands 2 (0.02 acres); 5 (0.37 acres); 10 (0.01

acres); 11 (0.3 acres); 12 (0.14 acres); and 14 (0.04 acres).

All of these isolated wetlands are proposed to be impacted by the

Project (D Ex 10). Isolated wetlands of 0.5 acres or larger are:

Wetlands 1 (1.52 acres); 3 (1.06 acres); 4 (7.51 acres); 6 (0.5

acres); 9 (5.52 acres); and 15 (1.12 acres). Of those wetlands,

only isolated Wetland 6 (0.5 acres) is proposed to be impacted.

30. The other wetlands on-site are considered contiguous.

These are: Wetlands 7 (1.04 acres); 8A (1.81 acres); 8 (13.7

acres on site); and 13 (0.01 acres). Of these, Wetlands 7 and 8A

will be impacted for a total of 2.85 acres.

31. The following are not truly wetlands, but rather are

upland cut drainage ditches: 16 (0.02 acres); 17 (0.12 acres);

18 (0.07 acres); 19 (0.25 acres); 20 (0.06 acres); and 21 (0.06

acres). Of these, the following will be impacted by the Project:

16, 18, 19, 20, and 21. Alterations in upland cut drainage

ditches are not required to comply with the criteria related to

fish, wildlife, or listed species and their habitats unless they

provide significant habitat for threatened or endangered species.

Wetlands Functions

32. All of the wetlands and uplands have been impacted in

part by land management activities on the site and adjacent

sites. For example, the site has been extensively logged, borrow

pits have been constructed, and the Quail Ridge subdivision

severed Wetlands 5, 6, 7, and 8A from a formerly large wetland

area that extended into the Quail Ridge site. The power line and

its associated road and the construction of the Quail Ridge

subdivision altered the hydrology of Wetlands 5, 6, 7, and 8A.

All of these alterations were completed prior to existing

District rules requiring a permit prior to construction of a

surface water management permit became effective on December 7,

1983.

33. For the isolated wetlands less than 0.5 acres in size

which will be impacted (Wetlands 2, 5, 10, 11, 12, and 14), the

following unrebutted testimony was provided: ( i) the wetlands

are not used by threatened or endangered species for more than an

incidental use; (ii) the wetlands are not located in an area of

critical state concern; and (iii) the wetlands are not connected

by standing or flowing surface waters at seasonal high water

levels to one or more wetlands. These isolated wetlands less

than 0.5 acres in size are of minimal value to fish and wildlife,

when considered individually and cumulatively. The impact to

these isolated wetlands are considered de minimus , based upon the

disturbed condition of these wetlands and their use by limited

members of animal species. Petitioner’s expert MacDonald opined

that Wetlands 2, 5, 11, and 12 were of more than minimal value,

although she admitted Wetlands 2 and 11 were not as important as

other wetlands on the site. However, the mitigation plan

compensates for whatever functional value these wetlands may

provide.

34. The major wetland impacts are to Wetlands 6, 7, and 8A.

Wetland 6 is a lower quality wetland which provides some forage

habitat for wading birds and mammals that may stray through, and

some breeding habitat for amphibians. Wetland 6 may provide some

minimal value or less-than-minimal value to wood storks that may

incidentally use the wetland, and no value for the Florida Black

Bear. Wetland 7 is a lower quality wetland due to the adjacent

ditch, roadway, trail road, and power line easement. Wetland 7

may provide breeding habitat for some frogs, but not for gopher

frogs. It may provide for foraging, cover, breeding, nesting and

perching for other animal species. Wetland 8A may provide

breeding habitat for gopher frogs and foraging, cover, breeding,

nesting, and perching areas for other animals. It is not a

habitat typically suited for forage habitat for wood storks.

35. Upland cut drainage ditches to be impacted are 16, 18,

19, 20, and 21. These are considered to be low quality. The

3.9-acre borrow pit and the 0.18-acre borrow pit provide minimal

functional value. Gopher frogs (a Species of Special Concern)

may breed in the 0.18-acre borrow pit. The larger borrow pit

supports a fish population but does not have sufficient shallow

water areas for forage or draw down ability to concentrate fish.

The smaller borrow pit does not have a fish population and does

not appear to have suitable forage areas.

36. Petitioner testified that on one occasion she saw wood

storks (an endangered species) on the Walden Chase property in

the power line easement near Wetlands 7 and 8A. She also saw

Little Blue Herons (a Species of Special Concern) use the 3.9

acre borrow pit more than once. She also saw a Sherman's Fox

Squirrel (a Species of Special Concern), Snowy Egret (a Species

of Special Concern), and Bald Eagle (a Threatened Species), but

she did not specify where or when she saw those animals or how

frequently. Petitioner's daughter saw a Florida Black Bear (a

Threatened Species) one time near the power line on the Walden

Chase property about four years ago. However, there was no

evidence that these animals use the wetlands for nesting or

denning or that the wetlands on the Walden Chase property provide

critical habitat for these animals. Petitioner's expert

MacDonald testified that the site is not used for nesting or

denning of these and other species. Any use of the wetlands

on-site by threatened or endangered species would be incidental

because the habitat on-site is not the type typically used by

such species. Any impacts to these species would be offset by

the mitigation plan.

37. All parties agreed that gopher frogs may be present

on-site and may use some of the wetlands on-site for breeding

habitat. However, impacts to gopher frogs will be mitigated

through Walden Chase’s plan to relocate all gopher frogs to an

approved site. The relocation plan has been approved by the

Florida Fish and Wildlife Conservation Commission. Any gopher

frogs which escape this relocation effort will still be able to

use the wetlands remaining on the site for breeding purposes.

Wetland Mitigation

38. To mitigate for anticipated impacts to wetland

functions, Walden Chase will create 3.8 acres of new wetlands,

preserve 29.39 acres of wetlands, and preserve 5.64 acres of

uplands. Wetlands will be created adjacent to Wetlands 8 and 4.

The creation areas are currently typical pine plantation, an

abundant land form in the area. The wetland and upland

preservation areas will be encumbered by a conservation easement

subject to the provisions of Section 704.06, Florida Statutes.

The mitigation ratios offered are consistent with the District’s

past practice and within the District’s rule guidelines. The

mitigation is to be conducted on-site. The mitigation is viable

and sustainable.

39. Allegations that the mitigation offered is "poor"

because it does not preserve adjacent uplands is in error because

the preserved wetlands remaining are surrounded by upland

buffers, except for a road-crossing in Wetland 8A. The

road-crossing is considered a secondary impact, off-set by

additional mitigation.

40. The proposed mitigation will off-set the adverse

impacts to wetland functions caused by the Project. The

functional values lost by the Project will be replaced. The

conservation easement will preserve portions of the property,

keeping those portions in their existing condition in perpetuity.

Permit conditions have been imposed to ensure success of the

creation areas. A monitoring and maintenance program will be

undertaken to assure success.

Mitigation Costs

41. The mitigation, including monitoring and maintenance,

is expected to cost between $81,287 and $112,800. Walden Chase

will ensure that the funds to complete the mitigation are

available by funding an escrow account for that purpose. The

escrow account will be established at 110 percent of the

contracted amount for such work.

Reduction and Elimination

42. Walden Chase considered alternative designs which would

reduce or eliminate the impacts to Wetlands 6, 7, and 8A.

Wetland 6, as a 0.5 acre isolated wetland, will be impacted for

the construction of Lake 5 (part of the storm water management

system). Reconfiguration of Lake 5 to avoid impact to Wetland 6

would result in a loss of seven residential lots (at a cost of

approximately $280,000) and increased construction costs (of

$46,800), for a total increase of $326,000. The alternative is

not practicable because the benefits to be achieved by

preservation of Wetland 6 do not warrant the cost of avoidance.

43. Wetland 7 is being impacted to construct ballfields

which are part of the recreation park located in the center of

the Project. Moving the ballfields to an alternative location

would result in a loss of approximately 15 residential lots (at a

cost of $525,000) and would require construction of additional

supporting facilities (at a cost of $150,00), for a total cost of

$675,000. Wetland 7 is a medium quality wetland that has been

previously drained, and is not a pristine wetland. The

alternative is not practicable because the environmental benefits

would be very small compared to the costs of relocating the

facilities.

44. Wetland 8A is being impacted by construction of a

road-crossing and a storm water pond (Pond 3). The road-crossing

is required to connect the various areas in the Project and the

various land uses in the CR 210 PUD. The road-crossing is

unavoidable, and crosses the wetland at the narrowest location.

There is no practical alternative to relocating Pond 3 because

that relocation would require use of pipes that would be too

large to install in the ground. Two other alternatives were

considered: ( i) relocating the pond and discharge through

Wetland 8 (at a cost of $1,600,000); and (ii) moving the pond

immediately south of Pond 3 and losing 13 lots (at a cost of

$450,000). Wetland 8A is a medium quality wetland. The

alternative is not practicable because the environmental benefits

to be achieved compared to the cost were not reasonable.

45. The District provided unrebutted testimony that a

reduction and elimination analysis would not be required for the

isolated wetlands less than 0.5 acre in size.

46. Further reduction of Wetland impacts will be achieved

by lining storm water Ponds 3 and 4, which are adjacent to

wetlands.

Wildlife Utilization

47. The potential exists for secondary impacts to wildlife

utilization in wetlands crossings located adjacent to Wetland 1

and into Wetland 8A. However, except for those areas, upland

buffers of a minimum width of 15 feet and an average width of 25

feet are provided abutting the Wetlands that will remain on-site.

The wetland mitigation plan offsets any wetland functions and

values lost through those impacts.

48. With regard to whether the Project will adversely

impact adjacent uplands which are used by aquatic and

wetland-dependent animal species that are listed in Table 12.2.7-

1 of the Applicant’s Handbook, the uplands are not used for

nesting or denning by any of the species listed.

Historical and Archaeological Resources

49. There will be no adverse impact to significant

historical or archaeological resources. There are no such

resources on the site. Additionally, the Permit conditions

require that if any such resources are discovered during

construction that work be halted, and the District be notified.

Future Phases

50. Potential secondary impacts of the Project are wetland

impacts which could potentially result from future phases of the

Project. Walden Chase and the District presented an unrebutted

analysis of a future phase of the CR 210 PUD that could

potentially impact a portion of Wetland 8, which is located off

the Walden Chase property. The potential wetland impact would be

a 0.6-acre road-crossing required by the local government in

order to connect portions of the CR 210 PUD. Conceptually, the

0.6-acre impact could be mitigated by preservation of wetlands

and uplands on the tract of land served by the road-crossing.

However, the additional phase could be constructed in a way

consistent with the District rules that would not result in

secondary impacts to wetlands or water quality.

ERP Criteria

51. In order for an applicant to obtain an ERP from the

District, an applicant must provide reasonable assurances that

construction and operation of the proposed surface water

management system comply with the criteria enunciated in Rules

40C-4.301 and 40C-4.302, Florida Administrative Code. The

Applicant’s Handbook adopted in Rule 40C-4.091, Florida

Administrative Code, provides clarification of these rules.

52. Section 10.2.1 of the Applicant’s Handbook establishes

a presumption that construction and operation of a surface water

management system will meet certain rule criteria if certain

conditions are met. These conditions are met because: ( i) the

post-development peak rate of discharge (49 cubic feet per

second) does not exceed the pre-development rate of discharge (52

cubic feet per second); (ii) no calculations are required

regarding volume of discharge because the system does not

discharge to a land-locked lake, nor are any special basin

criteria adopted for the area; and (iii) flows of adjacent

streams, impoundments or other water courses will not be

decreased so as to cause adverse impacts. Having satisfied these

four conditions, the following rule criteria are presumably met:

(1) Construction and operation of the System

will not cause adverse water quantity

impacts to receiving waters and adjacent

lands. § 40C-4.301(1)(a), Florida

Administrative Code;

(2) Construction and operation of the System

will not cause adverse flooding to

on-site or off-site property.

§ 40C-4.301(1)(b), Florida

Administrative Code; and

(3) Construction and operation of the System

will not cause adverse impacts to

existing surface water storage and

conveyance capabilities.

§ 40C-4.301(1)(c), Florida

Administrative Code.

53. Rule 40C-4.301(1)(d), Florida Administrative Code,

requires that construction and operation of the System will not

adversely impact the value of functions provided to fish and

wildlife and listed species by wetlands and other surface waters.

A four-part test for satisfying any secondary impacts for the

System affecting this criterion is described in Section 12.2.1 of

the Applicant’s Handbook. A potential adverse secondary impact

exists for the disturbance of the wetlands by use of adjacent

uplands (e.g., horses, dogs, cats, etc.). However, pursuant to

Section 12.2.7 of the Applicant’s Handbook, these impacts are not

considered adverse if upland buffers of a minimum of 15 feet, an

average of 25 feet, are provided. No aquatic and

wetland-dependent species use the uplands on the site for nesting

and denning and therefore it is presumed that no adverse

secondary impact to those species will occur. There will be no

adverse impact to significant archeological and historical

resources and therefore it is presumed that no adverse secondary

impact to those species will occur. The future phase of the CR

210 PUD is not part of the Project nor is it being developed by

Walden Chase. However, for purposes of permitting, wetland

impacts on that phase could be considered potential secondary

impacts of the Project. Walden Chase and the District presented

unrebutted testimony that the future phase of the CR 210 PUD

could be constructed so as not to adversely impact wetlands or

water quality, and therefore it is presumed that no adverse

secondary impacts will occur as a result of that phase. The

potential secondary impact for the road-crossing in Wetland 8A

would not result in adverse impacts to wetlands or water quality.

The potential secondary impact for the road-crossing in

Wetland 8A was considered as part of the other impacts to that

wetland, and as part of the wetlands impact onsite are offset by

the mitigation plan. Additionally, the values and functions of

the wetland impacts are off-set by the mitigation plan.

Consequently, the criterion contained in Rule 40C-4.301(1)(d) has

been satisfied.

54. Rule 40C-4.301(1)(e), Florida Administrative Code,

requires that construction and operation of the System will not

adversely affect the quality of receiving waters so as to violate

state water quality standards. This criterion is presumed met if

the System is designed and constructed in accordance with Chapter

40C-42, Florida Administrative Code; and Section 10.7.2,

Applicant’s Handbook. The parties have stipulated that this

condition has been met for all portions of the System except:

( i) the diversion from Quail Ridge into Wetland 8; and (ii) the

discharge of storm water from back yards through vegetative

natural buffers. With regard to the diversion from Quail Ridge,

Walden Chase has agreed to refrain from diverting that discharge

until water quality standards are met, assuring that the

diversion will not violate these standards. With regard to the

vegetative natural buffers, those buffers have been calculated to

be large enough to provide the required level of storm water

treatment. Consequently, the criterion contained in

Rule 40C-4.301(1)(e) has been satisfied.

55. Rule 40C-4.301(1)(f), Florida Administrative Code,

requires that construction and operation of the System will not

cause adverse secondary impacts to the water resources. Water

quality discharging from the System will presumptively meet water

quality standards because the System is designed in accordance

with the provisions of Chapter 40C-42, Florida Administrative

Code. No diversion of water from Quail Ridge to Wetland 8 will

be allowed if water quality standards are not met. The

vegetative natural buffers provide water quality treatment for

water discharging into the wetlands. Therefore, there will be no

adverse secondary impacts to the water quality of the water

resource. Additionally, Walden Chase has provided reasonable

assurance that there will be no adverse impact to groundwater

resources by lining those storm water ponds necessary to prevent

draw-down of wetlands, and by ensuring that water will continue

to percolate into groundwater sources. There will be no adverse

impact to aquifer recharge. Consequently, the criterion

contained in Rule 40C-4.301( i)(f), Florida Administrative Code,

is satisfied.

56. Compliance with Rules 40C-4.301(1)(g), (h), and (k),

Florida Administrative Code, has been stipulated to by the

parties.

57. Rule 40C-4.301(1)( i), Florida Administrative Code,

requires that construction and operation of the System will be

capable of being performed and of functioning properly. The

System is a very simple, low-maintenance system that is expected

to perform well. Consequently, the criterion contained in Rule

40C-4.301(1)( i) has been satisfied.

58. Rule 40C-4.301(1)(j), Florida Administrative Code,

requires that construction and operation of the System will be

performed by an entity with the financial, legal, and

administrative capability of ensuring that the activity will be

undertaken in accordance with the terms of the permit. Walden

Chase has designated the HOA as the operation and maintenance

entity. In conformance with Section 7.1.2 of the Applicant’s

Handbook, Walden Chase has submitted Articles of Incorporation,

draft revisions to those Articles of Incorporation, and Covenants

and Restrictions which provide sufficient powers to the HOA to

operate the System, establish rules and regulations, assess

members for associated costs, contract for services, and exist in

perpetuity. Walden Chase will also establish an escrow account

in the amount of 110 percent of the cost of mitigation for the

purpose of establishing the financial responsibility for the

mitigation, monitoring, and corrective action for wetland

mitigation work. Consequently, the criterion contained in Rule

40C-4.301(1)(j), Florida Administrative Code, is satisfied.

59. Rule 40C-4.301(2), Florida Administrative Code, and

Section 12.2.4.5 of the Applicant’s Handbook set forth special

requirements that are to be applied if an applicant is unable to

meet water quality standards because the ambient conditions in

the receiving body of water are below water quality standards.

As set forth above, Walden Chase has provided reasonable

assurances that water quality standards will not be violated.

Consequently, the criterion contained in Rule 40C-4.301(2),

Florida Administrative Code, is satisfied.

60. Rule 40C-4.302(1)(a), Florida Administrative Code,

requires that the District balance seven factors to determine

whether construction and operation of the System will be contrary

to the public interest. The public health, safety, and welfare

factor is considered neutral because: ( i) the System will not

impact off-site properties; (ii) flood levels are controlled; and

(iii) water flows are maintained. The factor related to

conservation of fish and wildlife, including endangered or

threatened species or their habitats is considered neutral

because adverse impacts to those functions are offset by the

mitigation plan. The factor related to erosion, navigation, the

flow of water, and shoaling is considered neutral because an

effective erosion control plan is in place, and no harmful

effects are anticipated to navigation or the flow of water or as

a result of shoaling. The factor related to fishing or

recreational values and marine productivity in the vicinity of

the activity is considered neutral because the mitigation would

off-set any adverse impact. The factor related to significant

historical and archaeological resources is considered neutral

because none are anticipated to be on-site. The factor related

to the current condition and relative functions being performed

by areas affected by the proposed activity is considered neutral

because the current condition and relative values of wetlands

will be maintained. The System will be permanent, a condition

which is considered neutral in balancing the public interest

because any adverse impacts are off-set by the mitigation plan.

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

Consequently, the criterion contained in Rule 40C-4.302(1)(a),

Florida Administrative Code is satisfied.

61. Rule 40C-4.302(1)(b), Florida Administrative Code,

requires that construction and operation of the System will not

cause unacceptable cumulative impacts. Such an analysis asks the

question whether the proposed system, considered in conjunction

with past, present and future activities in the drainage basin,

would be the "straw that breaks the camel’s back" with regard to

water quality, wetland, and other surface water functions. The

mitigation for wetlands impacts is being conducted on-site and

adequately off-sets any adverse impacts. If all projects in the

same drainage basin undertook similar mitigation for the same

type of wetland impacts, there would be no adverse cumulative

effect. As attested by Petitioner’s expert, there will be no

cumulative loss occurring on site. Consequently, the criterion

contained in Rule 40C-4.302(1)(b), Florida Administrative Code,

is satisfied.

62. Rule 40C-4.302(1)(c), Florida Administrative Code,

establishes additional criteria for Projects located in adjacent

or in close proximity to certain classified waters. The parties

have stipulated that the Project is not so located.

Consequently, this criterion has been satisfied.

63. Rule 40C-4.302(1)(d), Florida Administrative Code,

requires certain conditions for projects which constitute

vertical sea walls. The parties have stipulated that the Project

does not contain vertical sea walls. Consequently, this

criterion has been satisfied.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties hereto

pursuant to Section 120.57, Florida Statutes (1998).

65. This is a de novo proceeding intended to formulate

final agency action. Dept of Transp. v. J.W.C., Inc. , 396 So. 2d

778, 786-87 (Fla. 1st DCA 1981). The burden of proof in a

permitting hearing initially falls upon the applicant to prove

entitlement by a preponderance of the evidence. J.W.C. , 396 So.

2d at 788 (citing Balino v. Dept of Health & Rehabilitative

Servs. , 348 So. 2d 349 (Fla. 1st DCA 1977)). To carry the

initial burden, the applicant must provide reasonable assurances

through presentation of credited and credible evidence of

entitlement to the permit. Id. at 789. The applicant’s burden

is one of reasonable assurances, not absolute guarantees. City

of Sunrise v. Indian Trace Community Dev. Dist. , 14 F.A.L.R. 866,

869 (South Florida Water Management Dist., January 16, 1992).

The applicant’s evidence will be accepted by the trier of fact

when it is accepted by the agency and properly identified and

authenticated by the agency as being accurate and reliable.

J.W.C. , 396 So. 2d at 789. Likewise, even for contested issues,

an applicant’s unrebutted testimony will not be rejected unless

it is shown to be inaccurate or unreliable. Id. ; Merrill Stevens

Dry Dock Co. v. G. & J. Inv. , 506 So. 2d 30 (Fla. 3d DCA 1987).

66. Once the applicant has carried this burden through a

preliminary showing of entitlement, the burden of presenting

contrary evidence shifts to the Petitioner. J.W.C. , 396 So. 2d

at 789; Hoffert v. St. Joe Paper Co. , 12 F.A.L.R. 4972, 4987

(Dept of Envtl. Regulation, December 6, 1990). The Petitioner is

required to present evidence of equivalent quality and prove the

truth of the facts alleged in the petition. J.W.C. , 396 So. 2d

at 789, Hoffert , 12 F.A.L.R. at 4987. For applicants who have

provided prima facie evidence of entitlement to the permit, the

permit cannot be denied unless the Petitioner presents contrary

evidence of equivalent value. J.W.C. , 396 So. 2d at 789; Ward v.

Okaloosa County , 11 F.A.L.R. 4217, 4236 (Dept of Envtl.

Regulation, June 29, 1989). The Petitioner’s burden cannot be

met by way of presentation of mere speculation of what "might"

occur. Chipola Basin Protective Group, Inc. v. Florida Chapter

Sierra Club , 11 F.A.L.R. 467, 480-81 (Dept of Envtl. Regulation,

December 29, 1988).

67. Walden Chase provided credible and credited evidence

demonstrating entitlement to the environmental resource permit.

The burden then shifted to Lee to present evidence of equivalent

quality to that evidence. Lee has not carried this burden.

68. By a preponderance of the credible and accepted

evidence, Walden Chase has given reasonable assurances that the

criteria set forth in Rules 40C-4.301 and 40C-4.302, Florida

Administrative Code, as well as relevant provisions of the

Applicant’s Handbook, have been complied with, and the permit

should accordingly be issued.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of

law, it is:

RECOMMENDED that a final order be entered granting the

requested permit in accordance with the agency’s proposed agency

action.

DONE AND ENTERED this 1st day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

this 1st day of September, 1999.

COPIES FURNISHED:

Deborah Andrews, Esquire

11 North Roscoe Boulevard

Ponte Vedra Beach, Florida 32082

David J. White, Esquire

Suite 100

4804 Southwest 45th Street

Gainesville, Florida 32068

Veronika Thiebach, Esquire

Mary Jane Angelo, Esquire

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

John G. Metcalf, Esquire

Pappas, Metcalf, Jenks,

Miller & Reisch

Suite 1400

200 West Forsyth Street

Jacksonville, Florida 32202

Marsha Parker Tjoflat, Esquire

Rogers, Towers, Bailey,

Jones and Gay, P.A.

Suite 1500

1301 Riverplace Boulevard

Jacksonville, Florida 32207

Henry Dean, Executive Director

St. Johns River Water

Management District

Highway 100, West

Palatka, Florida 32177

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.