STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Transcription

1 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION FLORIDA WILDLIFE FEDERATION, ] ] Petitioners, ] DOAH Case No. 12- ] v. ] DEP OGC No. ] CRP/HLV HIGHLANDS RANCH, LLC ] and FLORIDA DEPARTMENT OF ] ENVIRONMENTAL PROTECTION, ] ] Respondents. ] ] FLORIDA WILDLIFE FEDERATION S PETITION FOR HEARING 1. Petitioner, Florida Wildlife Federation (FWF) respectfully files this petition for a formal evidentiary hearing pursuant to Sections and (1), Fla. Stat., and Section , Fla. Stat., challenging the Florida Department of Environmental Regulation s (DEP) notice of intent to issue: an environmental resource/mitigation bank permit: a variance which waives the financial responsibility requirements for the construction, operation and long term maintenance of the mitigation bank; the issuance of a certification of compliance with Florida s water quality standards under Section 401 of the federal Clean Water Act (CWA) (33 U.S.C. 1341); and DEP s proposed finding of consistency with Florida s Coastal Zone Management Act. 2. The FWF challenges these proposed DEP agency actions and requests this petition be transferred to the Division of Administrative Hearings (DOAH) for a formal evidentiary hearing, and that a recommended order and final order be entered denying the subject permit application, denying the variance which waives Highlands Ranch s 1

2 financial responsibility and financial security obligations for the proposed mitigation bank, denying the CWA water quality certification, and finding DEP s proposed agency actions to be inconsistency with Florida s Coastal Zone Management Act. Parties 3. The FWF is a duly incorporated Florida not-for-profit corporation at all relevant times to this proceeding. The principal address of FWF for purposes of this proceeding is 2590 Golden Gate Parkway, Suite 105, Naples, FL FWF has standing in this proceeding under the following statutes. A. FWF is a Florida corporate citizen with standing pursuant to Section (5)&(6), Fla. Stat. FWF has approximately 110 members who reside in Clay County where the Highlands Ranch project is located, and at all times relevant to this proceeding FWF has had well over 25 current members residing within Clay County. The corporate purposes of FWF include the protection of the environment, fish and wildlife resources, and the protection of air and water quality, and the proposed DEP agency actions related to the Highlands Ranch project to be permitted will have the effect of impairing, polluting, or otherwise injuring the waters and natural resources of Florida, including, but not limited to, a net loss of wetlands and failing to comply with Florida s water quality standards. B. FWF has standing pursuant to Section (7), Fla. Stat. and Chapter 120, Fla. Stat. because the state water quality standards and CWA water quality certification proposed by DEP s proposed agency action are part of Florida s CWA approved program, and the members of FWF use and enjoy the waters and natural resources affected by the proposed project, including the cumulative and 2

3 secondary impacts of the proposed project, thus, the FWF meets the standing requirements for case and controversy pursuant to Article III of the U.S. Constitution. C. FWF has standing under Section (5), Fla. Stat. and Chapter 120, Fla. Stat. because the proposed activity will determine and affect its substantial interests by affecting FWF s members use and enjoyment of the waters and natural resources protected by Chapters 373 and 403, Fla. Stat., including but not limited to, FWF s members use and enjoyment of the waters and natural resources of the areas where the Highlands Ranch mitigation bank credits may be used. Additionally, the waters and natural resources FWF and it s members use will be adversely affected by the cumulative and secondary impacts of the proposed DEP agency action non-rule policy concerning mitigation banks. 4. Highlands Ranch is a Delaware limited liability corporation registered with the State to do business in Florida. DEP s proposed agency action states service of Highlands Ranch is c/o Tim Hamilton, Environmental Services, Inc., 7220 Financial Way, Suite 100, Jacksonville, FL DEP is the Florida s state environmental protection agency with the power and duty to control and prohibit pollution of the air and water of the State of Florida. The DEP Agency Clerk is Lea Crandell, DEP Office of General Counsel, 3900 Commonwealth Blvd, Mail Station 35, Tallahassee, FL FACTS Procedural Background 6. The Highlands Ranch Mitigation Bank (HRMB) project on 1,755 acres in Clay 3

4 County at issue in this petition is currently subject to both a SJRWMD mitigation permit issued on August 4, 2010 (Permit No ), and a April 18, 2011 Mitigation Bank Instrument agreement (SAJ VG) signed by Highlands Ranch, the U.S. Army Corps of Engineers (Corps), and the U.S. Environmental Protection Agency (U.S. EPA). The HRMB project in the SJRWMD permit and the federal 2011 Mitigation Bank Instrument agreement is the same mitigation bank plan as involved in this proceeding. 7. Both the current SJRWMD mitigation bank permit process and the current federal 2011 Highlands Ranch Mitigation Bank Instrument agreement process for the HRMB required Highlands Ranch to provide up front reasonable assurance of the applicable rules for issuance of the mitigation bank permit and execution of the Highlands Ranch Mitigation Bank Instruct agreement, including up front reasonable assurance of the maximum potential mitigation bank credits using the Uniform Mitigation Assessment Methodology (UMAM) to calculate the appropriate maximum potential mitigation bank credits. The current SJRWMD mitigation bank permit limits the maximum potential mitigation bank credits for the HRMB to mitigation bank credits. The current federal 2011 Highlands Ranch Mitigation Bank Instrument agreement limits the HRMB maximum potential mitigation bank credits for the HRMB to 70 mitigation bank credits. 8. Both the current SJRWMD permit and the current federal 2011 Mitigation Bank Instrument agreement allows release of mitigation bank credits of the HRMB only after the HRMB meets performance standards for the potential mitigation bank credits (i.e., to determine the levels of success of the mitigation bank). 9. Both the current SJRWMD permit and the current federal 2011 Mitigation 4

5 Bank Instrument agreement currently require Highlands Ranch to provide financial assurance and financial security based upon an Irrevokable Letter of Credit (LOC) for the construction and implementation of the HRMB plan, and the provision of an irrevokable LOC for the perpetual management of the HRMB. A. The Current SJRWMD Mitigation Bank Permit 10. On November 25, 2009, Highlands Ranch had applied to SJRWMD for a mitigation bank permit for the subject 1,575 acre HBMB in Clay County, requesting a maximum of 425 mitigation bank credits. The proposed HRMB consisted of 3 phases. SJRWMD reviewed the application using the UMAM process and proposed issuing the permit with a maximum of potential mitigation bank credits and requiring an irrevocable LOCs as financial security for the construction, implementation, and perpetual maintenance of the HRMB. 11. Highlands Ranch challenged the mitigation bank credit limit of SJRWMD s 2009 proposed agency action. Highland Ranch did not challenge the financial responsibility requirement, or any other requirement, of the 2009 proposed SJRWMD mitigation bank permit. A three day evidentiary hearing was held on March 10-12, 2010 before DOAH ALJ D.R. Alexander, who entered a Recommended Order on May 26, 2010 finding the SJRWMD s proposed mitigation bank permit limitation of mitigation bank credits was reasonable, and recommended SJRWMD issue a mitigation bank permit limiting the maximum HRMB credits to a maximum of mitigation bank credits for the 1,755.5-acre HRMB in Clay County. No exceptions were filed by the parties, and on July 14, 2010 SJRWMD issued a Final Order adopting the Recommended Order. 5

6 12. On August 4, 2010, SJRWMD issued Highlands Ranch a mitigation bank permit that limited to the HRMB to a maximum of potential mitigation bank credits. This current SJRWMD mitigation bank permit also requires Highlands Ranch to provide SJRWMD an irrevocable LOC for the construction and implementation of the HRMB, and an irrevocable LOCs for the perpetual maintenance of the HRMB. The procedures and requirements used in the review the application for the 2010 SJRWMD mitigation bank permit for the HRMB are consistent with the procedures and requirements that have been used for former mitigation banks that compete with the HRMB in the market for mitigation bank credits. 13. The SJRWMD mitigation bank permit limits the mitigation service area for use of the HRMB credits to SJRWMD Basin 4, which is the Lower St. Johns River Basin that includes portions of Baker, Clay, Putnam, St Johns, and Duval Counties. B HRMB Instrument Agreement 14. Based upon information and belief, on or about the Fall of 2009, Highland Ranch proposed establishment of the HRMB to the Corps and the U.S. EPA. 15.On April 18, 2011, Highland Ranch, the Corps, and the U.S. EPA executed and signed a federal Mitigation Bank Instrument agreement for the HRMB. Marc Majed El Hassan signed the agreement for Highlands Ranch on April 7, This federal Mitigation Bank Instrument agreement states that [u]pon signature and permit issuance by the appropriate agencies, this Mitigation Bank Instrument will be the basis for all mitigation and maintenance activities at HRMB. 17. This current federal Mitigation Bank Instrument agreement limits the HRMB maximum number of mitigation bank credits to 70 mitigation banks credits, a limit which 6

7 had been calculated and agreed upon by the parties using UMAM. This Mitigation Bank Instrument agreement allows release of the mitigation bank credits of the HRMB only after the HRMB meets performance standards in the Mitigation Bank Instrument for the determination of the levels of success of the HRMB. Calculation of the maximum mitigation bank credits and the release of mitigation bank credits included consideration of time lag and the risk factor of the mitigation. 18. The current federal 2011 Mitigation Bank Instrument agreement currently mandates Highlands Ranch provide financial assurance related to the construction and implementation of the HRMB plan, consisting of an Irrevokable LOC in the amount of one hundred and ten percent (110%) of the estimated costs for the construction and implementation of the HRMB plan. (Agreement, pg. 28). 19. The current federal 2011 Mitigation Bank Instrument agreement further mandates Highlands Ranch provide a perpetual HRMB management Irrevokable LOC for each phase, in an amount that, based upon an assumed 6% annual return, is adequate to generate the projected annual management costs for each phase. C. The Current Highlands Ranch Application with DEP 20. On November 3, 2011, approximately 6 months after signing the current federal 2011 Mitigation Bank Instrument agreement for the HRMB, Highlands Ranch submitted an application to DEP to replace the current SJRWMD mitigation bank permit, requesting increasing the mitigation bank credits from the maximum of potential mitigation bank credits in the existing SJRWMD mitigation bank permit to 426 potential mitigation bank credits. Highland Ranch also requested a variance (waiver) of the regulations which require Highlands Ranch provide financial responsibility for the 7

8 construction, operation and long term maintenance of the HRMB. To the best of the FWF s information, Highlands Ranch has not filed any application or request with the Corps and the U.S. EPA to revise the current federal 2011 Mitigation Bank Instrument agreement. 21. On December 13, 2011, DEP entered into a written agreement pursuant to the special case section of the Operating Agreement between DEP and SJRWMD, making DEP responsible for review of Highlands Ranch s November 3, 2011 application to modify the current SJRWMD HRMB permit. 22. DEP identified this permit application and variance request as DEP Permit No The 2011 Highlands Ranch application filed with DEP was not complete and did not contain supporting information for mitigation bank credit scoring. Examples of the incomplete supporting information includes, but is not limited to, Highlands Ranch not filing water quality information with DEP concerning antidegradation water quality standards in the mitigation bank service area (i.e., no Tier 1 existing ambient use information, no Tier 2 baseline assimilative capacity of water quality of the mitigation bank service area, no Outstanding Florida Water (OFW) existing ambient water data), no data concerning Florida s antidegradation water quality public interest test, no data concerning necessary and desirable under federal standards, no details concerning hydrology and drainage modifications, inadequate data on the relationship of upland mitigation and water quality standards, no data on the doctrine of administrative finality and res judicata, and inadequatre information concerning the application s calculation the maximum potential mitigation bank credits. 8

9 24. Without such additional information Highlands Ranch failed to provide reasonable assurance concerning the requested modification of the existing SJRWMD mitigation bank permit (Permit No ) and the maximum potential mitigation bank credits of the SJRWMD permit which had been the subject of litigation before ALJ D.R. Alexander. 25. DEP technical staff reviewed the Highlands Ranch 2011 application and drafted a proposed Notice of Denial. 26. DEP management overruled the DEP technical staff, directing DEP technical staff to not to request additional information. Thus the DEP file was never deemed complete. 27. DEP management directed staff to issue the permit based as a new pilot, performance-driven process for which DEP has never adopted a rule, and for which DEP has no authority to adopt as a rule. DEP technical staff was also instructed not to use time lag and risk factor in calculating potential mitigation bank credits. DEP management further directed DEP staff to have the permit award potential freshwater mitigation bank credits ( Hydric Flatwoods/Wet Prairie credits and Freshwater Forested Wetlands) to Highlands Ranch without reasonable assurance that the increase in maximum potential freshwater mitigation bank credits are justified. 28. The vast major of the proposed increase in mitigation bank credits is based upon upland credits which are ecologically and scientifically unjustified as wetland mitigation credits. 29. DEP has adopted no rule for any type of performance based mitigation bank 9

10 permit, thus, Section (1)(e)1, Fla. Stat. prohibits DEP or an administrative law judge from basing agency action which affects the substantial interests of a party such as the FWF upon an unadopted rule such as DEP s instant performance-driven approach. Thus, as a matter of law, evidence concerning DEP s proposed non-rule performance based approach is irrelevant, immaterial and inadmissible as evidence in the evidentiary proceeding hereby requested by FWF. 30. Publications of DEP s Notice of Intended Agency Action on the Highlands Ranch Mitigation Bank (Permit ) were on August 26, 2012 in the Florida Times Union (Duval County) and on August 30, 2012 in Clay Today (Clay County). The Mitigation Bank Project Before DEP 31. FWF contends the Highland Ranch application for the HRMB before the DEP is virtually identical to the HRMB permitted by the current SJRWMD Permit No. (Permit No ), and the April 18, 2011 Mitigation Bank Instrument agreement (SAJ VG). Thus, the FWF adopts Paragraphs 7-11 of the Recommended Order ALJ D.R. Alexander which describes the HRMB project and property as follows. 7. Highlands Ranch proposes to construct, implement, and operate a mitigation bank on 1,575.5 acres in the County. (The banking site is a part of a larger 1,800-acre tract purchased by the applicant for $15 million.) The property is located in the west central part of the County around three miles south of County Road 218, southwest of the intersection of Louie Carter Road and Palmetto Road, and approximately two miles east of the Bradford County line. Jennings State Forest lies to the east, Camp Blanding Military Reservation (a Florida National Guard training facility) lies to the south, and a titanium mine abuts the property to the west. The property is within the District's jurisdictional territory. 8. The mitigation bank property consists of approximately acres of uplands and 552 acres of wetlands and is located within the Northern 10

11 St. Johns River and Northern Coastal Mitigation Drainage Basins. 9. The bank site lies at the confluence of the proposed Camp Blanding/Osceola Greenway and the proposed North Florida Timberlands and Watershed Reserve. These greenways are currently listed as desirable parcels for acquisition through the Florida Forever program, a conservation and recreation land acquisition program which is implemented by DEP, but acquisition and implementation of these greenways have not been completed. The acquisition of the Florida Forever parcels is intended to conserve natural resources, provide habitat to a number of listed species, and establish protected corridors between previously-acquired public lands. The property has also been identified as a Priority 1 category in the Century Commission's Critical Lands and Waters Identification Project (CLIP), a database of statewide conservation priorities which was developed to rank the relative importance of the Florida landscape in terms of biodiversity, landscape, and water resources. 10. At the present time, portions of the site are utilized for pine production, and have been for decades. Parts of the property have been subjected to typical pine plantation management activities including removal and suppression of native vegetation, application of herbicides and fertilizers, installation of bedding and furrows, construction of trail roads and ditches, and fire suppression. Timber stands on the site vary in age from ten to twenty-five years, and the planted pines within parts of the property have been recently harvested. 11. Much of the community types present on the site have been altered from their native community type by the above-described historic and ongoing silviculture activities. The existing communities present on the site include approximately 991 acres of mesic and xeric pine plantation, 224 acres of hydric pine plantation, 328 acres of isolated and contiguous wetlands, and acres of trail roads, electric easements, and structures. Most of the onsite wetlands are associated with two named creek systems, Boggy Branch Creek and the Tiger Branch Creek, which are oriented in a west-to-east direction on the property. Boggy Branch Creek is located in the northern portion of the property, while Tiger Branch Creek is located in the southern part of the site. Both of these creek systems flow offsite to the east into the North Fork of Black Creek, which flows northward, ultimately reaching the St. Johns River. 32. The FWF further adopts paragraphs of ALJ D. R. Alexander s Recommended Order which describes the law for granting or denying applications for 11

12 mitigation bank permits. 16. A mitigation bank is defined in Section (19), Florida Statutes, as "a project permitted under s undertaken to provide for the withdrawal of mitigation credits to offset adverse impacts authorized" by an ERP issued under Part IV, Chapter 373, Florida Statutes. (A mitigation bank permit is a type of ERP.) Section (1), Florida Statutes, authorizes the District to require a permit to establish, implement, and operate a mitigation bank. The bank then stores credits, and when a developer fills wetlands, and is legally required to replace them, he can purchase the banked wetland credits from the "banker" (in this case Highlands Ranch) and use them to meet the mitigation requirements. Mitigation banks are intended to "emphasize the restoration and enhancement of degraded ecosystems and the preservation of uplands and wetlands as intact ecosystems." (1), Fla. Stat., and , A.H. When establishing a bank, the District's ERP rules specifically recognize preservation, enhancement, and restoration as separate forms of mitigation. See 2.0(r), (pp), and (vv), A.H. Preservation as a form of mitigation "will most frequently be approved in combination with other mitigation measures." , A.H. 17. Under Section (4), Florida Statutes, a mitigation bank is to be awarded a number of mitigation credits by the permitting agency. A mitigation credit is a "standard unit of measure which represents the increase in ecological value resulting from restoration, enhancement, preservation, or creation activities." Fla. Admin. Code R (8). The number of mitigation credits must be "based upon the degree of improvement in ecological value expected to result from the establishment and operation of the mitigation bank as determined using a functional assessment methodology." (4), Fla. Stat. Ecological value is defined in Rule (3) as: the value of functions performed by uplands, wetlands and other surface waters to the abundance, diversity, and habitats of fish, wildlife, and listed species. Included are functions such as providing cover and refuge; breeding, nesting, denning, and nursery areas; corridors for wildlife movement; food chain support; natural water storage, natural flow attenuation, and water quality improvement which enhances fish, wildlife, and listed species utilization. The District has adopted a substantially similar provision in Section (b), Applicants Handbook. 18. After mitigation credits are awarded, a credit release schedule is set 12

13 for the mitigation bank. See (5), Fla. Stat. 19. The statutory criteria for reviewing and acting on an application for a mitigation bank permit are set forth in Section , Florida Statutes. The District has also adopted rules governing the establishment and operation of mitigation banks which are contained in Rule Chapter 40C-4 and Section 12.4 of the Applicant's Handbook. 33. At the time an agency decides whether to issue or deny an application for a mitigation bank permit, the applicant must provide reasonable assurance the proposed mitigation bank will achieve success and the degree of improvement in ecological value. As held by ALJ D.R. Alexander s Recommended Order and SJRWMD s Final Order, the applicant for a mitigation bank permit must provide reasonable assurances regarding the maximum number of mitigation credits at the time the permit is initially reviewed. 68. As the applicant, Highlands Ranch has the burden of establishing by a preponderance of evidence that 425 credits is the appropriate amount to be awarded rather than the District s intended action of issuing a mitigation bank permit with potential bank credits. CPR/HLV Highlands Ranch, L.L.C. v. SJRWMD, DOAH Case No (paragraph 68), SJRWMD F.O.R. No (July 13, 2010). Authority for this legal conclusion of law is Section (1), (4), Fla. Stat.; Fla.Admin.Code R (1)&(2); Fla.Admin.Code R (4); Fla.Admin.Code R ; Fla.Admin.Code R (1); SJRWMD Applicant s Handbook 9.1.1, , , , , , , and DEP s proposed non-rule, pilot, performance based approach is illegal, and it is not within DEP s substantive jurisdiction to rule upon this non-rule policy issue. Deep nd Lagoon Boat Club, LTD v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2 DCA 2001)(legal 13

14 determination concerning collateral estoppel not within DEP s area of expertise DEP did not have substantive jurisdiction on collateral estoppel issue). 35. DEP s non-rule performance approach is prohibited by existing statutes and applicable regulations. DEP s approach fails to provide a point of entry for affected third parties to challenge DEP s proposed agency action, a result which denies due process and is contrary to Section and , Fla. Stat. 36. DEP has no jurisdiction or authority to determine whether Highland Ranch is collaterally estopped or prohibited by waiver from modifying the maximum mitigation credits of the current SJRWMD permit, or waiving the current financial responsibility requirements of the SJRWMD permit. 37. DEP has no authority to issue a mitigation bank permit with freshwater mitigation credits without up front reasonable assurance of potential freshwater credits. 38. DEP does no have reasonable and sufficient facts to support its assessment of potential freshwater mitigation credits to the HRMB. 39. DEP proposes to grant Highlands Ranch s request for a variance waiving the financial responsibility requirements of applicable rules on the grounds that the MRMB has a unique nature which would impose an substantial hardship on Highland Ranch. FWF contends the HRMB is not unique, and that no substantial hardship would be imposed. Highlands Ranch is already subject to the financial responsibility requirements by the SJRWMD permit, and the April 18, 2011 federal Mitigation Bank Instrument agreement which Highlands Ranch voluntarily signed. 14

15 Facts and Law Raised by this Petition 40. The FWF raises the following issues of facts and law. A. FWF contends that the modification of the current SJRWMD mitigation bank permit mitigation credit maximum of for the HRMB is barred by the doctrines of res adjudicata, estoppel by judgment, and administrative finality related to the Recommended Order and Final Order in CPR/HLV Highlands Ranch, L.L.C. v. SJRWMD, DOAH Case No (paragraph 68), SJRWMD F.O.R. No (July 13, 2010). B. FWF contends that the modification of the current SJRWMD mitigation bank permit mitigation credit maximum of for the HRMB is barred by the doctrines of res adjudicata, estoppel by judgment, administrative finality, and waiver related to the current April 18, 2011 federal Mitigation Bank Instrument agreement concerning the mitigation bank credits of the HRMB. C. FWF contends that the DEP has no authority use a non-rule performance approach for mitigation banks. DEP s proposed non-rule performance approach is prohibited by existing statutes and applicable regulations, and DEP s approach fails to provide a point of entry for affected third parties to challenge DEP s proposed agency action, a result which denies due process and is contrary the right to substantially affected person to petition for hearings pursuant to Section and , Fla. Stat. D. FWF contends that reasonable assurances have not been provided to support DEP s proposed determination that HRMB has potential freshwater mitigation credits. See, Fla.Admin.Code R (1). 15

16 E. FWF contends that reasonable assurance has not been provided to support DEP s waiver of the financial responsibility mandates in the current SJRWMD permit and the current April 18, 2011 federal Mitigation Bank Instrument agreement concerning the mitigation bank credits and financial responsibility related to the HRMB. F. FWF contends that the waiver of Highlands Ranch s financial assurances requirements illegally removes all reasonable assurance and necessary financial security for the awarding of mitigation bank credits for the HRMB. G. FWF contends that reasonable assurance has not been provided to support certification of compliance with Florida s water quality standards, especially including the Tier I, Tier 2 and Tier 2.5 OFW antidegradation standards of Florida s U.S. EPA approved water quality standards. Fla.Admin.Code R (42) defines Florida s water quality standards to include Florida s antidegradation policy. Fla.Admin.Code R (14) defines Florida s antidegradation Tier 1 "Existing use". Fla.Admin.Code R (12),(17) & (18), and (1) define Florida s antidegradation Tier 2 which requires the protection of the assimilative capacity of water bodies, which is the 1975 baseline water quality of a water body that is better than the water quality classification standard for the water body. Degradation of the baseline assimiltive capacity of a water body must be clearly in the public interest, and the degradation of the assimilative capacity must be necessary and desirable under federal standards. Fla.Admin.Code R and (2) which define antidegradation Tier 2.5 which is OFW existing ambient water quality standards. No reasonable assurance of these antidegradation water quality standard requirements has not been provided, thus, DEP cannot certify water quality standards under the 16

17 federal Clean Water Act. F. FWF contends that the proposed DEP actions are not clearly in the public interest as required by Fla.Admin.Code R (1)(b) and (18). G. FWF contends that reasonable assurance of compliance with Fla.Admin.Code R (4) has not been provided due to Highland Ranch s failure to provide DEP with the necessary information for the DEP fiile to be deemed complete for permit review. H. FWF contends that DEP s assessment of potential mitigation bank credits of the HRMB illegally failed to use the time lag and risk factors in the assessment. Consideration of time lag and risk must be considered, and always has been considered, in determining the potential mitigation credits of a mitigation bank. See, Fla.Admin.Code R (3)(b). J. FWF contends that DEP s proposed granting of mitigation bank credits to the HRMB will result in the net loss of wetland function. K. FWF contends that DEP s proposed waiving of Highland Ranch s legal duty to provide financial responsibililty and financial security for construction, implementation and perpetual management of the HRMB will result in the net loss of wetland function. L. FWF contends that reasonable assurance of consistency with Florida s Coastal Zone Management Act was not provided. M. FWF contends that reasonable assurance of compliance with Section 9.1.1(d)(e)(f) & (j) of the SJRWMD s Applicant's Handbook has not been provided. N. FWF contends that reasonable assurance of compliance with Section 17

18 10.2.2(a)(b)&(c) of the SJRWMD s Applicant's Handbook has not been provided. O. FWF contends that reasonable assurance of compliance with Section of the SJRWMD s Applicant's Handbook has not been provided. P. FWF contends that reasonable assurance of compliance with Section of the SJRWMD s Applicant's Handbook has not been provided. Q. FWF contends that reasonable assurance of compliance with Section of the SJRWMD s Applicant's Handbook has not been provided. R. FWF contends that reasonable assurance of compliance with Section of the SJRWMD s Applicant's Handbook has not been provided. S. FWF contends that Section (1)(e)1, Fla. Stat. prohibits DEP or an administrative law judge from basing agency action which affects the substantial interests of a party such as the FWF upon an unadopted rule such as DEP s instant performance-driven approach. Thus, as a matter of law, evidence concerning DEP s proposed non-rule performance based approach is irrelevant, immaterial and inadmissible as evidence in the evidentiary proceeding hereby requested by FWF. Applicable Rules and Statutes The rules and statutes which support denial of the subject permit application are listed in Chapter 120, Fla. Stat.; Chapter 373, Fla. Stat.; Chapter 403, Fla. Stat.; Fla. Admin. Code Chapters 62-4, ; : and ; and Sections 9.1.1; ; ; ; ; ; ; and of SJRWMD s Applicant s Handbook. WHEREFORE, the FWF respectfully requests: a. That they be granted a full Section and Section , Fla. 18

19 Stat. evidentiary hearing; and b. That a recommended order and a final order be entered which denies the subject mitigation bank permit revision, denying the variance which waives Highlands Ranch s financial responsibility for the proposed mitigation bank, denying the CWA water quality certification, and finds that proposed agency action to be inconsistency with Florida s Coastal Zone Management Act. /S/ Thomas W. Reese Thomas W. Reese, Esq. Attorney at Law st Avenue South St. Petersburg, FL Telephone: (727) TWReeseEsq@aol.com FBN Counsel for FWF 19

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21 CERTIFICATE OF SERVICE I certify that a copy of the above Petition for Hearing was served by U.S. mail upon the th individuals listed below this 8 day of September, Tim A. Hamilton Mark P. Thomasson, P.E. Environmental Services, Inc. Director 7220 Financial Way, Suite 100 Division of Water Resource Management Jacksonville, FL DEP 2600 Blair Stone Road Tallahassee, FL /S/ Thomas W. Reese Thomas W. Reese 21