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SWFWMD Overturns Recommended Order, Issues Permit

Posted Tuesday, October 6th, 2015

On August 25, 2015, the Southwest Florida Water Management District (SWFWMD or District) granted an Environmental Resource Permit (ERP) for a proposed development on Perico Island in Bradenton, Florida. SWFWMD issued the ERP despite a Recommended Order by Administrative Law Judge (ALJ) Bram D. E. Canter recommending denial. The Recommended Order found the proposed mitigation for the project to be insufficient. SWFWMD rejected this finding and ultimately overturned the decision of ALJ Canter.

The ERP is for the construction of a surface water management system on a 3.46 acre site to be developed as four single family residential lots. Wetlands impacts involve fill of 1.05 acres of wetlands and impacts to a mangrove shoreline on Anna Maria Sound. The purchase of credits from the Tampa Bay Mitigation Bank serves as out-of-basin mitigation for the project. This purchase was determined by a uniform mitigation assessment methodology (UMAM) analysis to adequately offset the project’s proposed impacts to functional wetland habitat.

ALJ Canter issued a Recommended Order on June 25, 2015, recommending that the District deny the proposed ERP. In reaching the recommendation for denial, the ALJ found that mitigation was insufficient. This conclusion was based on and encompassed other determinations in the Recommended Order including: the use of mitigation credits from the Tampa Bay Mitigation Bank was inadequate and did not fully offset the adverse impacts of the proposed project; the proposed project will cause cumulative impacts that would violate state water quality standards; the proposed project did not meet the standard to be clearly in the public interest; and the applicant under-calculated secondary impacts in the UMAM score. Additionally, the Recommended Order found that the applicant did not demonstrate reasonable design modifications to eliminate or reduce impacts to wetland functions.

SWFWMD rejected the ALJ’s determinations and ruled that mitigation was, in fact, sufficient for the project. SWFWMD has the exclusive final authority to determine the sufficiency of proposed mitigation, and the ALJ’s findings relating to sufficiency of mitigation are conclusions of law, not binding upon the agency. See Save Anna Maria, Inc. v. Dep’t of Transp., 700 So.2d 133, 116 (Fla. 2d DCA 1997). It is in the responsibility of the agency, not the hearing officer, to consider and determine what measures to mitigate the adverse effects that may be caused by the project will be legally sufficient under the statute.  1800 Atlantic Developers v. Dep’t of Envtl. Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989). SWFWMD determined that the purchase of credits from the Tampa Bay Mitigation Bank was sufficient to fully offset adverse impacts to wetlands and other surface waters pursuant to Section 373.414, Florida Statutes and Rule 62-345, Florida Administrative Code.

In the Proposed Final Order, SWFWMD summarized the basis for the overall findings, stating that the “mitigation proposed by the applicant was sufficient and that reduction and elimination of impacts to wetlands and other surface waters was adequately explored and considered.” McClash v. Land Trust No. 97-12, Final Order, Case No. 14-4735 at 6 (SWFWMD August 25, 2015). Ultimately, the District overturned the recommendation of ALJ Canter and issued the ERP.

Please contact Robert Volpe should you have any questions or concerns regarding this decision.

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