STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. C. BASS, BASS RANCH, INC., ) and OKEECHOBEE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-181

)

COQUINA WATER MANAGEMENT )

DISTRICT and SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Okeechobee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 17, 1973. The parties were represented by counsel:

For Intervening

Petitioners Andrew B. Jackson, Esquire

J.C. Bass and Post Office Box 488

Bass Ranch, Inc.: Lake Placid, Florida 33852

For Intervening Kyle S. Van Landingham, Esquire Petitioner Okeechobee County Courthouse Okeechobee County: Okeechobee, Florida 33472

For Respondent Emerson Allsworth, Esquire and Coquina Water Robert F. Friedman, Esquire Management District: 1177 Southeast Third Avenue

Ft. Lauderdale, Florida 33316

For Respondent John Henry Wheeler, Esquire SWFWMD: Post Office Box V

West Palm Beach, Florida 33402

Respondent Coquina Water Management District (Coquina) applied to respondent South Florida Water Management District (SFD) for a permit "for construction of Phase I of a 22 square mile [surface water management] project which presently has a conceptual approval." Joint-exhibit No. 7, p. 1. At the hearing, intervening petitioner J.C. Bass and Bass Ranch, Inc., took the position that Coquina's application was inconsistent with the prior conceptual approval granted by SFWMD because Coquina had allegedly failed to submit detailed drawings and supporting calculations sufficient to demonstrate that " the quantity of water discharged by the proposed system will be within limitations that should prevent any adverse effect on the receiving waters," Joint exhibit No, 2, p. 12. In his opening statement, counsel for the Bass interest also raised the related issue of whether the contemplated discharge would in fact adversely affect property downstream.

FINDINGS OF FACT

1. On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract.

   
   

2. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir.

   
   

3. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application.

   
   

4. The surface water management plan given conceptual approval by SFWMD provides:

   
   

   The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied)

   Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made.

   
   

5. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address.

   
   

6. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

   
   

   CONCLUSIONS OF LAW

   
   

7. SFWMD's grant of conceptual approval to Coquina's surface water management plan constituted final agency action. "Nothing in the [Administrative Procedure] Act gives hearing officers collateral review power over final agency action. State Department of Health and Rehabilitative Services v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978); Freeport Sulphur Company v. Department of Environmental Regulation, et al., No. 78-527 (Rec. order; Sept. 25, 1978). The only question still open is whether Coquina's present application for a construction permit is in conformity with the conceptual approval.

   
   

8. Coquina's present application is not supported by plans, information, analysis or "supporting calculations" necessary to assure that, during the 25 year design storm, the amount of water flowing to Ash Slough after construction would be limited to the same amount as before construction. For this reason, Coquina has not met its burden to demonstrate that the proposed construction would be in conformity with the conceptual approval granted by SFWMD.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That SFWMD deny Coquina's application for construction permit.

DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

APPENDIX

Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed.

Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant.

Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application.

Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant.

Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact.

Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven.

COPIES FURNISHED:

John Henry Wheeler, Esquire

South Florida Water Management District Post Office Box V

West Palm Beach, Florida 33402

Robert Birenbaum, President Viking Communities Corporation

(Coquina Water Management District)

123 Northeast 70 Street Miami, Florida 33138

Kyle S. Van Landingham, Esquire County Attorney

Okeechobee County Courthouse Okeechobee, Florida 33472

Andrew B. Jackson, Esquire

J.C. Bass & Bass Ranch, Inc. Post Office Box 488

Lake Placid, Florida 33852

Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316

Mr. Bob Wittenberg Division of Florida Land

Sales and Condominiums The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301

Mr. George Stansbury Central Florida Regional

Planning Council Post Office Box 2089 Bartow, Florida 33830

Docket for Case No: 78-000181

Orders for Case No: 78-000181