Baragona, Kenneth S. Tackas and Foster Gilece was witnesses.
The Petitioner is a political subdivision of the State of Florida. Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. Respondent, MRT, is a real estate investment trust organized under the laws of the State of Maryland and authorized to do business in Florida. Royal Oaks Development Corporation is a Florida corporation, a wholly-owned subsidiary of Maryland Realty Trust.
MRT is developing a parcel of land in Sections 33 and 34, T-2-N, R-1-E, Leon County, Florida, and Section 4, T-1-N, R-1-E, Leon County, Florida, of which approximately 60 acres has already been developed as Royal Oaks Unit No. 1, a recorded subdivision pursuant to Chapter 177, Florida Statutes. The balance of the 120 acres is yet to be developed, and is the subject of this proceeding.
The specific activity for which the application for dredge and fill permit was submitted consists of improvements to a drainage-way running from the south boundary of the MRT property to a pond designated in the application as "Pond II", together with a drawndown structure, referred to as "S-15".
Following submittal of the permit application, DER notified MRT of the receipt of the application and advised that both a permit under Chapter 403, Florida Statutes and a license for stormwater discharge under Rule 17-4.248, Florida Administrative Code, would be required.
Following review by the Department, during which MRT was notified that the application in its original form would not be received favorably, MRT, on August 21, 1980, revised its application and based on such revisions, the Department, on October 10, 1980, notified MRT of its intent to issue the permit and license sought.
As indicated in the Intent to Issue, DER has asserted jurisdiction over the dredge and fill activities in question contending that they are contemplated to either be in or connected to "waters of the State".
Specifically, the Department's Intent to Issue states as follows: The Department has permitting jurisdiction under
Chapter 403, Florida Statutes, Section 17-4.28,
Florida Administrative Code, and Public Law
92-500 over dredge and fill activities conducted
in or connected to certain waters of the State. The specific pond in question and the pond to which it is connected constitute waters of the State over which the Department has dredge and fill permitting jurisdiction as defined in Section 17-4.28, Florida Administrative Code.
The project is not exempt from permitting procedures.
Pond II is approximately four acres in size and consists of a western lobe of approximately one acre. Pond II is connected to the north to a waterbody known as Pond III/Foxcroft Lake". The vegetation in the south portion of Pond III is typical of fresh water vegetation that grows in submerged or wet areas. The vegetation in an existing well-defined channel between Pond II and the proposed location of structure S-15 is also comprised of water-tolerant species. Sagittaria subulata was observed in the channel in the area proposed for location of S-15. This plant species cannot tolerate dry conditions, indicating that water is present in the channel under most conditions. Further, no upland or pioneer species were observed in the channel, which also is indicative of the fact that the channel usually contains water. Water flows from Pond II to Pond III approximately 90 percent of the time. The base flow in the channel is approximately 2 cubic feet per second. Based on the storage capacity of Pond II, it is probable that flow occurs out of Pond II into Pond III under most conditions. Although 88.0 feet mean seal level is the design normal pond elevation expected after construction of S-15, the present observable elevation of Pond II appears to be between 89.94 and 90.09 mean sea level. Observations of the types of vegetation surrounding Pond II supports the conclusion that the existing normal level of Pond II is approximately 90.0 mean sea level.
Pond III is a waterbody of approximately four acres in size and is a portion of the continuation of a larger 10 acre body of water referred to in this proceeding as "Foxcroft Lake". Pond III was the subject of a prior Department dredge and fill permit in which it was determined that Pond III constituted waters of the State subject to the dredge and fill jurisdiction of the Department. Pond III/Foxcroft Lake is a lake owned by more than one person, of approximately 14 acres of surface area and a maximum average depth of approximately 3 feet. Pond III/Foxcroft Lake discharges to and is connected directly to a waterbody known as Long Pond. Long Pond in turn is eventually connected to and discharges into Lake Lafayette.
Without any mechanisms designed to treat the pollutants expected to be generated by the proposed project, the development by MRT of its 120 acres of property could reasonably be expected to have a significant adverse impact on the waters of Pond II, Pond III and Foxcroft Lake. Scientific studies demonstrate that potential pollutants generated from developments - single family, multi-family and commercial - have a significant impact on receiving waters if not treated before discharged.
The project as presently designed will correct an existing source of pollution by removing sediment which is entering Pond II from the south from Shannon Forest Subdivision. This sediment has been deposited in the drainage- way between Shannon Forest and Pond II and is damaging and severely stressing biota in the drainage-way. This sediment has filled a portion of Pond II and could be expected to eventually discharge into Pond III/Foxcroft Lake.
The pre-development rate of flow off the project site as it presently exists is approximately 600 cubic ft. per second. The project as proposed will reduce the rate of flow by 50 percent, to approximately 300 cfs.
The project incorporates five mechanisms or abatement controls to treat contaminants customarily contained in stormwater: a grassed conveyance system; retention of natural vegetated areas; energy dissipators; sediment traps; and added storage.
Grassed conveyance systems treat stormwater by the assimulation by plant communities of dissolved pollutants, such as nutrients, and the deposition of suspended pollutants that have absorbed to the sediment particles. Approximately 50 percent of the conveyance system in the Phase II development will be grassed swales and re-vegetated ditches. As many swales as possible will be used to convey the stormwater from the discharge at the street outfalls to the ponds. The main drainage ditch through the property will also be grassed.
Natural vegetated areas to be left around the existing ponds will treat stormwater by assimilation and filtration in the same manner as the grassed swales and ditches. A one-acre parcel of wetlands is to be left between the southern most portion of the drainage-way and Pond II as described in MRT Exhibit No. 8 and in the revised permit application of August 21, 1980. The vegetation downstream of Pond II between the pond and control structure S-15 will also be left intact. Virtually all the vegetation bordering Pond II and Pond III will be left in place.
Five energy dissipaters are to be constructed upstream of Pond II. These structures are designed to reduce the existing sedimentation and erosion problems by reducing the energy gradient and allowing the deposition of sediment, upon which absorbed pollutants have attached, into the accompanying sediment traps.
Sediment traps are also to be constructed upstream of Pond II. Sediment traps treat stormwater by reducing the velocity gradient. Sediment and the pollutants absorbed to the sediment will drop out due to insufficient velocity.
Storage will be increased in Pond II by the construction of control structure S-15 and by the planned excavation of Pond II. Added storage has a beneficial effect on water quality in that it allows additional sediment particles to settle out, allows additional time for the vegetation on the edge of the ponds to assimilate dissolved pollutants such as nutrients, and reduces the peak discharge velocity.
The project is in the public interest in that it will alleviate an existing stormwater problem. In terms of probable efficiency, physical needs and costs, the project represents the best available treatment alternative. Based on existing technology, the system designed for this project is the most effective system within reasonable costs. The effectiveness of the stormwater treatment system depends on the presence of vegetation and will require less maintenance and attendant costs.
There does not presently appear to be any local government effort to implement stormwater controls to address this problem or source. Petitioner submitted no evidence of such local government efforts.
The system proposed by MRT will mitigate not only the effects of the discharge generated by the proposed development of the 120 acres of property owned by MRT, but will also mitigate the effects of an existing source of stormwater pollution. The system, as designed, is sufficient to afford the Department reasonable assurance that stormwater quality standards will not be violated.
The parties stipulated that, should the requested permit and license be issued, they should incorporate the following additional condition:
Roads and drainage facilities are to be owned and maintained by Leon County. All paving and drainage shall be done in accordance with the County's standards, details and specifications.
In addition, MRT has instituted civil litigation against Leon County concerning the property involved in this proceeding. One of the allegations of MRT's complaint is that Leon County has, through the action amounting to inverse condemnation, acquired a drainage easement over the property for which MRT is now seeking the dredge and fill and stormwater permits.
The plans submitted to DER by MRT with its application contain the following:
When the construction plans for Phase III of the Royal Oaks development are prepared, these plans shall be submitted to the Department for evaluation for compliance with the original stormwater review.
CONCLUSIONS OF LAW
Petitioner, Leon County, has "standing" to maintain this petition, and, accordingly, the Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Waters over which the Department may exercise jurisdiction under Chapter 403, Florida Statutes, are defined to Section 403.031(3), Florida Statutes, to:
... include, but not be limited to rivers, lakes, streams, springs, impoundments, and
all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property of water. Underground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through in channels, whether man-made or natural. (Emphasis added).
Rule 1704.28(2), Florida Administrative Code, provides that:
Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following categories of waters of the State (including the submerged lands of such waters and transitional zone of a submerged
land) shall obtain a permit from the Department prior to being undertaken:
rivers and natural tributaries thereto;
streams and natural tributaries thereto;
bays, bayous, sounds, estuaries, and natural tributaries thereto;
natural lakes, except those owned entirely by one person and except for lakes that become dry each year and are without standing water together with lakes of no more than ten (1) acres of water area at a
maximum average depth of two (2) feet existing throughout the year;
Atlantic Ocean out to the seaward limit of the State's territorial boundaries;
Gulf of Mexico out to the seaward limit of the State's territorial boundaries;
natural tributaries do not include intermittent natural water courses which act
as tributaries only following the occurence [sic] of rainfall and which normally do not contain contigous [sic] areas of standing water.
The proposed project requires a dredge and fill permit under Section 1704.28, Florida Administrative Code, from the Department because:
The preponderance of the evidence in this proceeding establishes that the waterbody referred to as "Pond III/Foxcroft Lake" is a natural lake, in multiple ownership of approximately fourteen acres in area, with an annual maximum average depth of at least three feet.
The preponderance of the evidence also establishes that the dredge and fill activities proposed in the instant application would be conducted in and around Pond II, a waterbody connected directly to, and which, under normal conditions, discharges water into Pond III/Foxcroft Lake via a well-defined channel, containing species of submerged vegetation, where flow occurs 90 percent of the time.
Pond III was the subject of a prior Department permit proceeding, and in that proceeding the Department determined that Pond III constituted waters of the State. See, McDonald v. Dept. of Banking and Finance, 356 So.2d 569 (Fla. 1st DCA 1977).
Pond II and Pond III are Class III waters of the State. Rule 1703.121, Florida Administrative Code.
A stormwater license from the Department is required if the Department determines that a new stormwater discharge will have a significant impact on the
water quality of the receiving waters of the State. Section 1704.248(4), Florida Administrative Code.
Receiving waters of the State for purposes of a stormwater license are those waters defined in Section 403.031(3), Florida Statutes, quoted above.
The preponderance of the evidence establishes that the proposed development would have a significant impact on the water quality of Pond II and Pond III/Foxcroft Lake absent pollution abatement controls.
Rule 1704.248(7), Florida Administrative Code, provides that:
In the issuance of a license for a significant stormwater discharge, the Department shall require reasonable abatement controls designed to result in compliance with water quality standards to the extent that the expected water quality benefits are reasonably related to the costs of the controls. The Department shall take into account, where relevant:
the public interest served by the discharge;
the probable efficacy, physical needs, and costs of alternative controls;
local government efforts to implement stormwater controls;
efforts of the discharger to mitigate the water quality impacts on the discharge; and,
any other relevant factors.
The Department, therefore, has jurisdiction to require a stormwater license based on the expected impacts of the proposed development on the water quality of the waters of Pond II and Pond III. Rule 1704.248(5), Florida Administrative Code.
Considering the public interest, the alternatives, local government efforts, and mitigation efforts, the preponderance of the evidence establishes that the proposed project may reasonably be expected to result in compliance with the Department's water quality standards and that the expected water quality benefits are reasonably related to the costs of the controls.
A permit applicant must provide the Department with reasonable assurance that a proposed activity will not cause pollution in contravention of Department standards, rules or regulations. Section 17-4.07(1)(c), Florida Administrative Code.
The applicant for a dredge and fill permit is required to affirmatively provide reasonable assurance to the Department that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter
17-3, Florida Administrative Code. Section 17-4.28(3), Florida Administrative Code.
The preponderance of the evidence in this proceeding establishes that the proposed project will not cause pollution in contravention of Department rules and will not result in violations of the Department's water quality standards.
