Consolidated-Tomoka pays $187,500 federal fine

Article Courtesy of The Daytona Beach News-Journal

By Dinah Voyles Pulver

Published August 19, 2016


DAYTONA BEACH — Consolidated-Tomoka Land Company has paid a $187,500 fine to the U.S. Environmental Protection Agency to resolve allegations that the company illegally dredged and filled 163 acres of wetlands several years ago on 3,500 acres it owns west of Interstate 95 and north of LPGA Boulevard.

An EPA order issued in June also requires the real estate company to restore 107.9 acres of wetlands and create another 41.26 acres of wetlands, said Dawn-Harris Young, an EPA spokeswoman.

That restoration could cost between $1.7 and $1.9 million, stated a Consolidated-Tomoka financial report earlier this year.

The company agreed to enter the order with the EPA not as an admission of wrongdoing, but as a way to move the planned sale of the land forward, said Mark Patten, the company’s senior vice president and chief financial officer.


Much of the land is under contract to Minto Communities, a Canadian homebuilder and developer. Minto has 1,586 acres along LPGA Boulevard under contract, as well as 1,686 acres neighboring that tract to the north, and fronting State Road 40, Patten said. Minto officials have said they plan 6,900 homes in a community for residents age 55 and older, with entrances and retail complexes off LPGA and S.R. 40.

A view of the property near Champion Elementary School in Daytona Beach.

“We have a very large, highly respected age-restricted home builder that wants to build a huge community,” said Patten. “In order to get that done, you have to get a permit.”

The U.S. Army Corps of Engineers has just opened a public comment period for the first phase of proposed construction at Oasis Daytona, Minto's first mixed-used residential and commercial development, on the southern tract.

The EPA action is the latest chapter in a saga that began more than seven years ago. The EPA concluded the company violated the federal Clean Water Act by dredging, altering or filling wetlands adjacent to the Little Tomoka River and Priest Branch, tributaries to the Tomoka River, an Outstanding Florida Water. The federal order also required Consolidated to seek an after-the-fact authorization from the Corps for filling wetlands.

Consolidated is required to restore 29.32 acres of wetlands on the southern tract, and to create 41.26 acres of wetlands on the land, which must be complete by June 1, 2017, federal documents show. The additional 78.6 acres of wetland restoration is required on the northern tract. The restoration and creation activities directed by the EPA can’t be used for mitigation of any other wetland losses.

The wetland violations date back nearly a decade, before any of the current management team, including Patten and President and Chief Executive Officer John Albright, were hired. Albright, who joined the company in 2011, said it appears the company was engaged in tree-replanting activity after much of the timber forest on the property was destroyed by the 1998 wildfires.

Staff with the St. Johns River Water Management District discovered the activity in 2008 and 2009, when they noticed heavy equipment on the land during a flyover.

District officials concluded the company had excavated 107 ditches, dredging or filling all or part of 108 wetlands over 218 acres. Ultimately, a portion of the impacts were exempted by the state as agriculture-related.

The settlement agreement between the district and Consolidated required the company to donate 665 acres of land about four miles west of where the violations occurred to the water district. That property, the DeBruhl Preserve, became part of land the district owns at Tiger Bay State Forest.

When a company reaches agreement with the EPA or the water district, said Patten, “on resolving their pursuit of our activities, it’s where the organizations come to an agreement on how to deal with it, not one organization saying we did this.”

“Should you try and get that resolved or should you fight it and have the economic impact be delayed or deferred or never happen?" said Patten.

The proposed development by Minto will provide an estimated 1,000 construction jobs in the area for the next 10 years, he said.

Consolidated-Tomoka noted in its annual financial report that if the company is subject to any liabilities associated with environmental or wetland issues “our financial condition, results of operations and our cash flows could be adversely affected.”

In the past 15 months, the company and Minto received permits from the water management district for a 99.6 acre residential and commercial development and a residential sales center for Minto north of LPGA, west of I-95 and east of the Tomoka River. The company also received a district permit for an 18-acre Tymber Creek Road project at that location.

The environmental consultant hired by Consolidated-Tomoka for the subdivision and the road project is Orlando-based Bio-Tech Consulting Inc., whose president John Miklos is chairman of the water district’s governing board.

Bio-Tech has been involved in a couple of controversial projects in Volusia County this year, including the city of DeBary’s proposal to use 100 acres of district land for its planned development around the SunRail station. Miklos' involvement in that project, as a consultant to the city, spurred complaints to the Florida Commission on Ethics and the U.S. Attorney, as well as questions about whether state rules on who can serve as water district board members should be changed.

Miklos has stated his board appointment d0esn’t preclude him from representing clients on permit applications to the district and that his firm has not received “any special treatment.”

Albright said Consolidated brought Bio-Tech on board because the consulting group had experience with large projects elsewhere in Florida.

"The recent experience we've had with them has been fantastic," he said. "They know their stuff and they just have a lot of deep knowledge."

"They're really diligent," he said. "It has been a good relationship and we're happy with the work."

Albright said he thinks the company's projects with Bio-Tech are "actually getting more scrutiny not less scrutiny."