STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2402

) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, JOHN D. REMINGTON, ) and BOLTON S. DRACKETT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 22-25 and November 5-7, 1990, in Naples, Florida, and November 30, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph Z. Fleming, Esquire

620 Ingraham Building

25 S. E. Second Avenue Miami, Florida 33131

For Respondent: John J. Fumero, Esquire Agency P. O. Box 24680

West Palm Beach, Florida 33146-4680

For Respondents: Terry E. Lewis, Esquire Applicants Kevin S. Hennessy, Esquire

2000 Palm Beach Lakes Blvd. Suite 900

West Palm Beach, Florida 33409 STATEMENT OF THE ISSUES

The issue is whether respondents/applicants' application for a construction and operation permit to construct and operate a surface water management system on Key Island in Naples, Florida should be approved.

PRELIMINARY STATEMENT

By application filed with respondent, South Florida Water Management District (SFWMD), respondents/applicants, John D. Remington and Bolton S. Drackett, sought the issuance of a construction and operation permit to authorize the construction and operation of a surface water management system on Key Island in Naples, Florida. After a staff report was issued which recommended that the permit be issued, petitioner, Florida Audubon Society

(FAS), filed a request for an informal hearing concerning the proposed agency action.1 A revised staff report was later issued on March 28, 1990. When the parties could not agree that there were no disputed facts, the agency converted the matter into a formal proceeding and referred it to the Division of Administrative Hearings on April 20, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 30, 1990, a final hearing was scheduled on October 22-25, 1990, in Naples, Florida. A continued hearing was held on November 5-7, 1990, at the same location and on November 30, 1990, in Tallahassee, Florida. On May 16, 1990, the case was transferred from Hearing Officer William R. Dorsey to the undersigned.

At final hearing petitioner presented the testimony of Dr. Mark A. Benedict, accepted as an expert in coastal ecology and related subfields, Dr. Samuel C. Snedaker, accepted as an expert in coastal ecology and related subfields, Stephen A. Means, a professional engineer, David R. Unsell, a SFWMD division director, Dr. Robert H. Gare, accepted as an expert in marine science, ecology and invertebrate zoology, Dr. Bernard J. Yokel, petitioner's president and accepted as an expert in wetlands biology and related subfields, and Dr.

Harold R. Wanless, accepted as an expert in geology. Also, petitioner offered petitioner's exhibits 1-32. All exhibits were received in evidence. Applicants presented the testimony of Stephen A. Means, a professional engineer and accepted as an expert in civil engineering, hydrology and surface water management, Thomas M. Missimer, accepted as an expert in hydrology, geology and water quality, Dr. Durbin C. Tabb, accepted as an expert in marine biology, ecology, and related subfields, Karen M. Johnson, a SFWMD supervisor and accepted as an expert in biology and surface water management permitting, Edward

W. Yaun, a SFWMD supervisor and accepted as an expert in civil engineering, hydrology and surface water management regulation, Dr. Michael F. Stephen, a geologist and accepted as an expert in geology and coastal engineering, Charles

F. Lee, Jr., an FAS senior vice-president, and Dr. Bernard J. Yokel, FAS's president. Also, respondents/applicants offered applicants' exhibits 1-5, 8, 11, 13, 14, 19A-20, 23-27, 29A and B, 32, 35-42, 44, and 50-53. All exhibits were received in evidence except exhibits 23, 27, 44, and 51. The District presented the video deposition (with transcript) of Jeanne Hall, director of the District's regulation department.

After a lengthy delay, the transcript of hearing (fifteen volumes) was finally filed on February 1, 1991. Proposed findings of fact and conclusions of law were originally due on February 21, 1991. At the request of the District, this time was extended to February 28, 1991. Petitioner's request for a second extension was granted and the parties were given to and including March 6, 1991, in which to file their proposed orders. The same were filed by the parties on that date. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

During the course of this proceeding, numerous discovery disputes arose necessitating various rulings and orders adjudicating those disputes. Those rulings and orders are self-explanatory and are not discussed in this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondents/applicants, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Key Island (the island), which lies just south of the mainland portion of the City of Naples, Florida (the city). The northern portion of the island, which consists of some 430 acres, is situated within the corporate limits of the city. Applicants intend to build a residential development consisting of not less than 42 nor more than 75 single family luxury homes on that portion of the island which lies within the city.2 To that end, they have filed for the necessary permits from various governmental agencies. This proceeding involves a request for a construction and operation permit to be issued by respondent, South Florida Water Management District (respondent or District), and which would authorize the construction and operation of a surface water management system through which stormwater runoff from the project will be directed and controlled.

      
      

   2. On March 28, 1990, the District, through its staff, issued a revised staff report recommending that the permit be issued with certain conditions. That proposed agency action has been challenged by petitioner, Florida Audubon Society (FAS), a nonprofit environmental organization, generally on the ground the applicants have not given reasonable assurance that all relevant rule and statutory criteria will be satisfied. In resolving this factual issue, the undersigned has accepted the more credible and persuasive testimony of the various witnesses and that accepted and credited testimony is embodied in the findings below.

      
      

2. The Parties and Standing

1. Applicants are the owners of record of the upper two-thirds of Key Island, the site of the proposed project. The District has permitting jurisdiction over surface water management systems in Collier County where the proposed project will be located.

   
   

2. Petitioner is an enviromental organization whose objective is to conserve natural resources and wildlife within the State of Florida. The organization was established in 1900 and now has forty-six chapters with approximately 35,000 to 40,000 members throughout the State. Although the FAS is a freestanding and separate entity, it is affiliated with the National Audubon Society in the following manner. If a Florida resident is a member of the national organization, he or she is automatically a member of the FAS and one of its forty-six local chapters. Thus, some of the individuals represented by FAS in this cause are members of both the FAS and national organization, and to that extent, any effect on the national members' interests would likewise affect the interests of the FAS members. The National Audubon Society owns two properties in southwest Florida: the Corkscrew Swamp and Rookery Bay Sanctuary (Rookery Bay). The northern reaches of Rookery Bay lie almost four miles to the south of the project site and consist of 6,000 acres of tidal wetlands, predominated in the lower reaches by mangrove forests and designated by the federal government as a natural estuarine sanctuary. However, some runoff from the proposed system will flow eastward into Dollar Bay, which lies approximately one thousand feet from the closest outfall on the eastern side of the island,

   and depending on the tides and winds, some waters from Dollar Bay eventually mix with the waters of Rookery Bay which lie four miles south of the project site.

   In addition, FAS's members use and enjoy the waters surrounding the island. Therefore, to this extent, petitioner's substantial interests will be affected by this proceeding.

   
   

   1. The Island

      
      

3. The island is a coastal barrier island which means it is totally surrounded by waters and is unabridged from the mainland. Like other barrier islands on Florida's western coast, Key Island serves as a buffer for the mainland from storms approaching from the Gulf of Mexico. The northern part of the island where the development will occur is about one-half mile wide while further south the island narrows to a width of only a few hundred yards. Extending some ten miles in a north-south direction parallel to the mainland, the island is bounded on the north by Gordon Pass which runs between the City of Naples and the northern tip of the island and by Dollar Bay (and the intracoastal waterway) on its northeastern side. The Gulf of Mexico lies on its western side while Rookery Bay lies to the southeast of the island. On the south side of the island is Little Marco Pass.

   
   

4. There is some development on the island at the present time including a beach club-restaurant known as the Keywaydin Club, which will be slightly modified to conform with the needs of the project, forty lodging units for members of the club and their guests, a pool and tennis court, a docking facility for twenty boats, and a golf putting green with an artificial surface. The cottages and club were originally constructed some sixty or seventy years ago. Prior to that, the island was farmed for pineapples. Except for electric golf carts, which operate on an extensive network of trails throughout the northern part of the island, vehicular traffic on the island is prohibited. Access from the mainland to the island is now and will continue to be provided by boat.

   
   

5. To date, applicants have obtained two permits from the Department of Environmental Regulation (DER) to (a) embed a subaqueous sewer line from the mainland to connect with the City of Naples sewer system and (b) place a sewage treatment plant on the island. Even so, applicants are not committed to a single method of sewage treatment. Both agency decisions have been appealed to the district court of appeal by FAS. The permitted sewage treatment plant does not employ above ground percolation ponds. Rather, it uses below ground drainfields which are more than one hundred feet from any proposed swale or other dry detention facility and is not a part of the proposed system. As such, and pursuant to District criteria, it was unnecessary for the District to consider the impacts, if any, to groundwater from the treatment and disposal of effluent.

   
   

6. The applicants intend to preserve 266.3 acres of the 430 acre project site. The preservation area includes 16.6 acres of oak uplands, 15.7 acres of isolated wetlands, and 234 acres of mangrove habitat surrounding the project. In addition, 56.4 acres of beaches, sand dunes, and other areas will be left as open space while the developed area itself will consist of 107.3 acres. Applicants do not intend to develop the remaining acreage and have agreed with local government to record a conservation easement and set aside the remaining 2,270 acres for preservation.

7. The evidence establishes that the upper twenty-four feet of the island's soil is made up of quartz sand. Beneath the sand is a layer of limestone. Thus, the permeability or percolation rate is high in all areas of the island which means that there would be very little, if any, runoff from a small storm event since most of the water would percolate down through the sandy soil.

   
   

8. Two topographic ridges or divides run through the northern portion of the island in a north-south direction. First, an upland or coastal ridge runs parallel to the beach on the Gulf of Mexico and is characterized by coastal scrub habitat. This divide provides for a natural historic flow pattern that allows water to traverse either westward to the Gulf or eastward to the wetland areas which lie on the island's eastern side. A second topographic divide sits to the east of the beach area and in the middle of an oak upland area and is dominated by oak scrub habitat.

   
   

9. All parties agree there is a fresh water lense which sits above the salt water aquifer contained in the limestone beneath the island. The lense is limited to interior portions of the island and its thickness fluctuates based on the seasonal rainfall. In other words, during the dry season, as fresh water evaporates from the system, it is replaced by the heavier sea water.

   Conversely, during the rainy season, the fresh water percolates into the soil and the lense increases in depth and provides a subsurface water table approximately three feet above sea level. Two ponds to be constructed as a part of the storm water management system will not alter the fresh water lense to any material degree, even if the tidal water enters the pond during a strong storm event or abnormally high tides.

   
   

10. On the west side of the project site is a beach dune system primarily vegetated with Australian pine which is killing off the native vegetation. Progressing easterly across the beach dune ridge one enters a mangrove area heavily populated with Australian pine and Brazilian pepper. An abrupt rise in elevation then occurs in the central part of the project site known as the oak scrub area. This area is particularly dry due to the permeable quartz sand and contains a variety of unusual plant and animal life which has adapted to the harsh conditions. Because the scrub oak environment is becoming increasingly rare in Collier County, applicants intend to preserve this area in an undisturbed state. Just east of this upland area is a heavily vegetated area of Brazilian pepper which precedes a mangrove area on the eastern site of the project area. An exhaustive identification of the animal life inhabiting the island revealed no threatened or endangered species. The gopher tortoise, a species of special concern in Florida, does inhabit the island. However, it presently co-exists comfortably with the human population already on the island. Finally, all proposed construction will be located upland of the regulatory jurisdictional line for state waters and wetlands.

    1. The Proposed System

       
       

11. As noted earlier, applicants propose to build a small, low-intensity residential development on the island. These single family luxury homes will have up to 5,000 square feet of air-conditioned space on lots not exceeding 15,000 square feet in size. The homes will be built in phases with approximately ten to be built during the first year.

    
    

12. To handle the surface water runoff associated with the project, applicants have divided the development area into seven surface water management basins based upon the seven existing natural water sheds on the upland portion of the project area. Each basin will have a system of inlets, culverts and

    swales which will direct runoff to control structures. The water then goes over the control structure when it reaches a certain height and is discharged downstream from the control structure into spreader swales from which the water is dispersed into either tidal or on-site preservation areas. In this regard, basin one will discharge into Gordon Pass to the north via an existing boat basin while basins two, three and seven will discharge to an internal conservation area which eventually sheetflows to Gordon Pass. Basins four, five and six will discharge into the perimeter conservation area and then into Dollar Bay. The latter body of water has been designated by the state as an aquatic preserve. Since the project is located within a tidal drainage basin, all drainage will ultimately flow to the Gulf of Mexico via Gordon Pass and Dollar Bay. It should also be noted that prior to discharge through control structures, runoff in basins five and six will be routed to a 7.3 acre lake and one acre lake, respectively. The lakes are located at the lowest levels of the island where rainwater would naturally pool. In addition, the lakes are unlined and the control elevations are set at the wet season water table levels to allow the unrestricted flow of ground water and maintenance of existing groundwater levels. It should be noted here that the lakes conform to all relevant District criteria and the District routinely issues permits for systems that include lakes.

    
    

13. In developing the design of the system, applicants examined the existing conditions on the site, including historic flow patterns, topography and receiving waters for the runoff. The District's criteria were then reviewed and applied with an aim of preserving the natural features and runoff patterns of the project. In other words, a principal objective was to retain as much of the pre-development or historic flow pattern as possible. Indeed, the swales are designed to mimic the natural conditions of the sheet flow.

    
    

14. The design of the system, including the control structures in each of the basins, is described in detail in the exhibits and revised staff report received in evidence. It is sufficient to say that basins one, two, three, four and seven are designed to treat water quality by the dry detention method. This will be accomplished by unlined swales, pervious with natural ground cover, that parallel the cart paths, so that runoff from the cart paths and paths to the homes will be directed to the swales with treatment within the swales and into each of the water quality control structures. Under this method, the swales slow down the water when it runs off giving any particulate matter in the water time to settle to the bottom, chemical constituents to absorb to the ground, and nutrients and other materials in the water to be removed. The water quality control structures, with attached weirs, provide a mechanism of slowing down the water and allowing potential contaminants to be removed from the water prior to its discharge. In basins five and six, water quality is accomplished through best management practices and wet retention. This entails the use of water quality weirs which detain the first flush of runoff and then release the first half inch of runoff into the receiving waters.

    
    

15. Finally, because the island is subject to the effects of tidal exchange between the Gulf of Mexico and the inland estuary of Naples and Dollar Bays, the system design was particularly sensitive to the site's location on a barrier island. This design sensitivity included coastal control line setback requirements, house pad elevation requirements (i.e., the pad must be at least eighteen inches above natural grade) and a mean high water line determination.

    1. Agency Interpretation of Rule Criteria

    
    

16. Besides contending that applicants have not satisfied all pertinent requirements for the issuance of a permit, petitioner has asserted that the agency failed to properly interpret three criteria contained in Rule 40E- 4.301(1), Florida Administrative Code. That rule sets forth the criteria which an applicant must satisfy in order for a permit to issue. More specifically, petitioner contends that subsections (g), (h) and (l) of the rule have been given a far too narrow construction. Those subsections require an applicant to give reasonable assurances that the proposed system "will not adversely affect public health and safety," "is consistent with state water policy", and "is not against public policy".

    
    

17. Subsection (g) requires an applicant to give reasonable assurances that a system will not adversely affect public health and safety. Generally, petitioner points out that the project is on a small barrier island which has no access to the mainland except by boat. Since the southwest Florida coastline is always subject to hurricanes and tropical storms, petitioner posits that if the application is approved and the project becomes reality, absent any definitive hurricane evacuation plans, the project residents may be unable to safely evacuate to the mainland in the event a hurricane strikes. Thus, petitioner argues that it is incumbent on the District to give consideration to hurricane evacuation plans before concluding that criterion (g) has been satisfied.

    
    

18. Although petitioner originally contended that subsection (h) was misconstrued by the agency, there was no evidence offered by FAS to contradict the District's interpretation.

    
    

19. Finally, subsection (l) requires that an applicant give reasonable assurances that a proposed system is not against public policy. Under FAS's interpretation of the rule, the District would necessarily have to consider any federal legislation or pronouncements and state executive orders which generally pertain to barrier islands on the theory that all such matters constitute public policy within the meaning of the rule. Thus, under this approach, the District would be obligated to consider all aspects of state executive order 81-105 signed by the then governor on September 4, 1981. That order encouraged the state acquisition of barrier islands and gave a higher funding priority to those that were more suitable for development, encouraged appropriate growth management on barrier islands by local governments, and encouraged any development on barrier islands to be consistent with evacuation capabilities and hazard mitigation. The latter consideration (hazard mitigation) concerns flood protection on the island itself. Petitioner also considers as being relevant the federal Coastal Barrier Resources Act (16 U.S.C. 3501 et. seq.), also known as COBRA, which has designated a portion of the island as a coastal barrier unit protected under COBRA. The law is directed primarily towards eligibility for federal flood insurance. Assuming the relevance of this federal law, this means that the District would have to evaluate the effect of the storm surge associated with a 100-year storm on the homes constructed on the island. However, it should be noted that neither the executive order or COBRA establish policy that would require denial of the permit.

    
    

20. The District interprets the three criteria in question within the context of its permitting authority. In other words, and as explained by the director of its regulation department by video deposition, in the process of reviewing surface water management system permits the District considers only water quantity (flood protection), water quality, and protection of the environment as being relevant to its inquiry. All rule criteria are interpreted

    within those perameters. Any other matters that do not fall within those three areas are considered to be outside the permitting authority of the District and are deemed to be irrelevant in the permitting process. Thus, in judging whether a system will "adversely affect the public health and safety" within the meaning of subsection (g), the District does not require an applicant to submit, nor does it consider during the permit review process, hurricane evacuation plans for the residents in the area where a surface water management system will be operated. Indeed, that responsibility falls upon other state and local governmental entities. It does, however, consider whether the system will adversely affect (a) the quality of the public's water supply and (b) the public safety in terms of the floor elevations of the dwellings (flood protection) in the event of a 100-year storm on the island. As to whether a system is consistent with state water policy within the meaning of subsection (h), the District construes the term "state water policy" from an environmental perspective and looks for guidance to the water quality standards in chapter 17- 40, which are administered by the Department of Environmental Regulation. If an application meets all District criteria, the District concludes that a system is compatible with state water policy. Finally, as to the requirement in subsection (l) that an applicant give reasonable assurances that a system is not against public policy, the District again interprets the rule to include only those public policy matters that pertain to issues within the purview of District permitting authority. Put another way, while there may be public policy statements on both the state and federal level dealing with barrier islands on a wide array of subjects, such as acquisition, flood insurance, submerged land permits and growth management, the District does not consider such statements in the review process unless the statement pertains to water quantity, water quality or protection of the environment. Thus, except as to the portion of executive order 81-105 that pertains to hazard mitigation, the District did not consider that order to constitute relevant public policy within the meaning of the rule. In a similar vein, the District considered COBRA only to the extent that it pertained to flood protection and more particularly the elevation above grade of finished floors. All other portions of the federal law were deemed to be irrelevant. These interpretations of the rule are both logical and rational and are hereby accepted.

    
    

    1. District Criteria

       
       

21. In order for applicants to obtain the requested permit, they must give "reasonable assurances" that the surface water management system will comply with the criteria enunciated in Rule 40E-4.301, Florida Administrative Code (1989). Whether such assurances have been given is the principal factual issue in this case. The disputed criteria are discussed in the findings below. Although petitioner originally contended that all criteria were in issue, it submitted no proof at hearing contesting the assertion that certain criteria had been met, and in its proposed recommended order, FAS did not identify those same criteria as being in issue. Therefore, the undersigned has assumed those uncontested criteria have been satisfied.

    
    

22. The first contested criterion requires the applicants to give reasonable assurances that the system "provides adequate flood protection and drainage." In this regard, the record reflects that the proposed system provides little alteration to existing drainage patterns and conforms with District requirements that post-development discharge of water runoff equals pre-development discharge during a design, 25-year/3-day, storm event. The island soils are highly permeable, providing good drainage, and the project is low density with little impervious surface area. In addition, there is no berming of basin boundaries which might inhibit water flow and impound water.

    Water management lakes are located in low areas of the project site and any overflow from such lakes would be consistent with flooding which would occur under similar natural events. Calculations performed by applicants show that the system protects buildings placed within the water management basins by requiring floor elevations to be higher than design storm events. Finally, the cart paths were designed to comply with District criteria for flood protection and are sufficiently elevated to be above flood levels for 25-year/3-day storm events. Therefore, it is found that the first criterion has been satisfied.

    
    

23. The second criterion concerns an inquiry as to whether the system will cause "adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, Florida Statutes." As to the water quantity impacts, applicants have established that there are no adjacent lands subject to flooding from discharge from the system, and the ultimate receiving water body from the site, the Gulf of Mexico, has an infinite capacity to receive water and thus will not be adversely impacted by quantities of water discharged from the site. Indeed, the post-development discharge approximates the pre-development discharge on receiving waters and land adjacent to the site, and off-site land will not be developed. Also, the system incorporates best management practices adopted by the District for protection from adverse water quantity impacts, and control structures and spreader swales placed throughout the system will protect against erosion and other water quantity impacts. As to water quality impacts, again it is noted that the system incorporates best management practices designed to protect against adverse impacts to water quality, such as swales, baffles and water quality control stuctures. The system will hold back the first flush of runoff allowing the majority of suspended solids and other pollutants to settle out. This will be achieved because the District's best management practices require detention of the first inch of runoff for the wet detention systems and three-quarters of an inch of runoff for the dry detention systems. In addition, the primary sources of water quality problems have been significantly diminished or removed from the project site. This is because of a low density of homes, use of golf carts and paths rather than streets and automobiles, and the preservation of natural ground cover. Finally, the contention that the system (project) will cause adverse impacts on the water quality of adjacent waters and thus impact the entire estuarine area is hereby rejected. Accordingly, the second criterion has been met.

    
    

24. The next consideration is whether the system will cause discharges which result in any violation in surface waters of the state of the standards and criteria of Chapter 17-3, Florida Administrative Code. Through the use of best management practices and a development which has limited sources of potential contaminants, applicants have given reasonable assurances that no water quality violations will occur.

    
    

25. Next, applicants must give reasonable assurances that the project will not cause adverse impacts on surface and groundwater levels and flows. The evidence shows that the project incorporates best management practices for design of detention facilities and is designed to minimize adverse impacts on surface and groundwater levels and flows. As noted earlier, swales are unlined and grass filled to slow surface water flow and enhance percolation of water into soils. In addition, culverts are located under cart paths to prevent impounding of water, and overflow levels for control structures are set at the wet season groundwater table level to insure against over-drainage or flooding. Contrary to petitioner's claim, the evidence also shows that the system ponds will not intercept the salt water aquifer beneath the island. This is because the lakes are -14 feet NGVD at their deepest level, and the saltwater is found

    at the level of the limestone formation at approximately -24 feet NGVD. At the same time, the system will have no adverse impact on the island's freshwater lense since the lakes will be predominately freshwater and are designed to avoid saltwater intrusion. Finally, the system will have no adverse impact on the potable water supply since all potable water for the development will be provided from the mainland via the water line presently serving the existing development on the island. This criterion has accordingly been satisfied.

    
    

26. An applicant must also give reasonable assurances that the proposed system will not cause adverse environmental impacts. In this regard, the development site contains approximately 249.7 acres of saltwater wetlands and

    3.0 acres of brackish marsh. There will be no construction of facilities in the mangrove wetlands surrounding the site. The project will provide minimum fifteen foot buffer zones around the three isolated wetlands. All isolated wetlands and buffer zones will be dedicated as conservation areas, and wetlands will be further protected by the use of spreader swales for the collection of discharged stormwater exiting control structures prior to sheet flow dispersion. A significant existing environmental problem on the island is the spread of nuisance plants such as Australian pine, Brazilian pepper and melaleuca. Applicants propose to remove these exotic plants as a part of the development, and this will have a positive impact on the island's habitat and wildlife. Applicants will also preserve 16.6 acres of upland habitat and relocate gopher tortoises now located near areas to be developed to the preserved oak uplands. Finally, the operation of the system will have no significant adverse environmental effects upon any threatened or endangered species or their habitats, and as noted above, the two system lakes should not adversely impact freshwater life based on the island. Accordingly, it is found that this criterion has been satisfied.

    
    

27. An applicant is further required to show that the system can be "effectively operated and maintained". Since the system is designed in accordance with best management practices approved and recommended by the District, and actually exceeds those criteria in many respects, it is found that applicants have given reasonable assurances that this criterion has been met.

    
    

28. The District must also consider whether the project will adversely affect public health and safety. In a prior finding, the undersigned has found that applicants have provided reasonable assurances that the system provides adequate flood protection and drainage. In addition, the system and development are in no jeopardy from rising tides. Although there was conflicting testimony on the issue of the future sea level rise, the jurisdictional line which formed the site's basin boundaries best illustrates the limit of tidal intrusion and any occurrence of tides beyond the jurisdictional line is at best a very rare occurrence. Indeed, during the recent tropical storm Marco which occurred in October 1990, the rising tide during the seasonal high high tide did not rise above the jurisdictional line. These considerations support a finding that this criterion has been met.

    
    

29. Subsection (h) requires the District to determine if the system is "consistent with the State Water Policy, Chapter 17-40, F.A.C." In this regard, the proposed system is in conformity with all District rules and criteria and thus the application is found to be consistent with state water policy.

    
    

30. The next applicable criterion is whether the proposed system is "against public policy". Except as to the matter of hazard mitigation as addressed in Executive Order No. 81-105 issued on September 4, 1981, and similar concerns in COBRA, there were no relevant public policy considerations. As to

    hazard mitigation, applicants have used the District criteria for establishing minimum building floor elevations under a design storm event known as the 100- year storm and cart path elevations above flood levels for 25-year/3-day storm events. Since the proposed system meets the applicable flood protection criteria, it is found that this criterion has been satisfied.

    
    

31. The criteria in subsections (j), (k), (m), (n) and (o) were not disputed by petitioner at hearing nor specifically addressed in its proposed recommended order and are accordingly deemed to have been satisfied by the applicants.

    
    

32. A principal contention of petitioner is that rising tides will regularly inundate the island, and the system will act as a conduit furthering the spread of saltwater intrusion. Since this contention was not aimed by FAS at any single criterion in rule 40E-4.301(1), but was raised in broad brush strokes, these findings are intended to supplement those previous findings that also address this issue. To begin with, the design of the system specifically addressed the effect tides may have on the system. After its review of the application, the District determined that no adverse effects would be caused by the system due to tidal influences on the island. Further, even though it was shown that small portions of the island would experience inundation in very unusual circumstances, it was established that under those circumstances the system would not exacerbate any flooding or adverse effect from saltwater. Indeed, the more credible evidence shows that tides rarely occur above the jurisdictional line which corresponds with the system perimeter. Finally, while FAS presented evidence that the sea level has risen some six feet over the last ninety years or so, the same expert could not predict any specific increase over a specific time frame in the future and conceded that the sea level may decrease in the future rather than increase.

    
    

33. Another principal contention raised by petitioner concerns the alleged impacts from the placement by applicants of a sewage treatment plant on the island to serve the proposed development. As noted in finding of fact 7, the authorization for applicants to do so was given by DER in Case No. 90-2415. The sewage treatment plant is not a part of the system and the permitting for such a facility is governed by rules of DER and not the District. Moreover, a District rule, not challenged by FAS and accepted by the undersigned as valid, provides that as long as a treatment plant is more than one hundred feet from the detention areas, and would not interfere with the functioning of the system, the District need not consider its impact on the surface water management system.

    In this case, the setback requirement was met and the District properly excluded this matter from its review and consideration.

    
    

    1. Attorney's fees and costs

       
       

34. Applicants have requested an award of attorney's fees and costs on the ground petitioner filed its request for informal hearing, which was then converted into a formal proceeding by the District, for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. To support their request, applicants presented testimony and documentary evidence at a continued hearing held in this cause on November 30, 1990.

    
    

35. As a general policy, the FAS supports the notion of "no development on the barrier islands", including Key Island. Indeed, this position was adopted by the FAS board of directors at a meeting held on April 18, 1988. The board of directors authorized its counsel to initiate the instant action at a meeting

    held on February 2, 1990. At hearing, FAS's president acknowledged that while "there is some potential for development" on the island, the FAS "would oppose that" and that its principal concern is not with the enviromental impacts per se but that such development would set a bad precedent for other islands FAS hopes to preserve. Petitioner accordingly opposes any permits which would authorize development on the island.

    
    

36. It is fair to say that FAS has opposed the applicants at every step in the permitting process. As noted earlier, applicants have been required to obtain permits from various governmental agencies, including DER and the District. To date, petitioner has filed a request for hearing to contest (a) the issuance by DER of a permit authorizing the construction of a subaquaous sewer main and cable crossing from the mainland to the island (Case No. 88- 4760), (b) the issuance by DER of a permit authorizing the construction and operation of a wastewater treatment plant on the island (Case No. 90-2415), and

    (c) the issuance by the District of a surface water management system permit in the instant case. As to the matter involving the issuance of the permit for a subaquaous line, after a lengthy evidentiary hearing DER entered a final order granting the requested permit. FAS appealed that order to the district court of appeal where the matter is still pending. As to the matter involving the issuance of a permit for a wastewater treatment plant, FAS's petition for hearing was deemed to be untimely (more than three months late) and DER issued a final order dismissing the petition for hearing with prejudice. FAS has appealed that decision to the district court of appeal where the matter remains pending. FAS has also met with representatives of the Department of Community Affairs (DCA) to urge that the overall project be considered a development of regional impact (DRI), and DCA has indicated, at least preliminarily, that the project may be subject to DRI review. In addition, FAS has filed an action in circuit court in Collier County contesting a decision by the City of Naples to issue the appropriate zoning authorization for the project. The status of that action is not of record. It should also be noted that FAS has indicated its intent to challenge any Key Island permit applications filed with the Jacksonville District of the United States Corps of Engineers. Also, FAS has voiced its opposition to the project to the Department of Natural Resources staff regarding coastal construction control line regulations on the island. Finally, FAS has appeared before the Florida Cabinent (sitting as the Board of Trustees of the Internal Improvement Trust Fund) in support of a moratorium on state submerged land leases adjacent to coastal barrier islands, including Key Island.

    
    

37. The petition filed by FAS in Case Nos. 88-4760 contested all allegations in the application and contended that the permit would enable development of the coastal barrier island thereby causing deleterious effects on the island and adjacent resources. The petition in Case No. 90-2415 also contested all allegations in the application and contended that the permit would permit development on a coastal barrier island thereby causing deleterious effects on the island and adjacent resources. In the instant case FAS has contested all allegations in the application and again raised the broad allegation that the permit will authorize development on a coastal barrier island thereby causing deleterious effects on the island and adjacent resources. Prior to filing the petition in the case at bar, FAS representatives acknowledged that they did not review the proposed permit to determine if it complied with agency criteria, did not perform or prepare any studies or investigations of impacts from such a permit, and did not submit any recommended permit or design change other than outright denial of the permit. Also, petitioner's witnesses did not perform site specific studies to support their

    opinions,3 and in some cases, FAS witnesses were not concerned with whether the project was in compliance with District rules but rather contended the District criteria were inadequate to protect the environment.

    
    

38. Petitioner's participation in this cause did not substantially change the outcome of the proposed agency action which is the subject of this proceeding. Thus, petitioner is deemed to be a nonprevailing adverse party within the meaning of Subsection 120.59(6)(e)3., Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

40. As the applicants in this cause, Remington and Drackett bear the burden of showing their entitlement to the requested permit by the preponderance of the evidence. Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

    
    

41. Initially, the question of petitioner's standing must be resolved. Citing the case of Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982), applicants have challenged FAS's right to participate in this proceeding on the grounds FAS has failed to show that a substantial number of its members will be affected by the issuance of the requested permit, and that the organization has not shown that it would suffer an injury in fact by virtue of the issuance of the permit. In this regard, applicants correctly assert that the fact that FAS may have obtained standing in prior proceedings is immaterial since standing must be alleged and proven on a case by case basis. In the case at bar, FAS has shown that an unidentified number of its members are also members of the national organization which owns property located southeast of Key Island and which exchanges water with Dollar Bay located directly east of the proposed system. FAS's members also use and enjoy the surrounding waters. While FAS did not specifically allege nor prove the exact number of members who fall in these categories, this showing is nonethless sufficient to meet the Florida Home Builders threshold requirements. Cf. Federation of Mobile Home Owners of Florida, Inc. v. Department of Business Regulation, 479 So.2d 252, 254-55 (Fla. 2d DCA 1985)(allegation by Federation that petition was filed on behalf of a small fraction of the owners represented by the Federation was nonetheless sufficient to convey standing upon Federation to file a petition for declaratory statement).

    
    

42. A stormwater management system, which is the subject of this proceeding, is defined in Subsection 373.403(10), Florida Statutes (1989) as follows:

    
    

    (10) "Stormwater management system" means a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.

    Subsection 373.413(1), Florida Statutes (1989) provides that . . . the (district) may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system

    . . . will comply with the provisions of this part and applicable rules promulgated thereto and will

    not be harmful to the water resources of the district.

    
    

    To implement the above statutory mandate, the District has adopted Rule 40E- 4.301, Florida Administrative Code, which sets forth the conditions for issuance of permits. The rule criteria which FAS originally contended were not satisfied by applicants are set forth below:

    
    

    (1) In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system:

    (a)provides adequate flood protection and drainage, (b)will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, Florida Statutes,

    1. will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of Chapter 17-3,

    2. will not cause adverse impacts on surface and groundwater levels and flows.

    3. will not cause adverse environmental impacts,

    4. can be effectively operated and maintained,

    5. will not adversely affect public health and safety,

    6. is consistent with the State Water Policy, Chapter 17-40, FAC,

    * * *

    1. meets any applicable basin criteria in Chapter 40E-41,

    2. will not adversely be harmful to the water resources of the District, and will not interfere with the legal rights of others, as defined in Rule 17- 40.070,

    3. is not against the public interest.

    4. will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a),

    5. will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in rule 40E-4.091(1)(a) and,

    6. will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule 40E-4.091(1)(a). However, it is concluded that subsections (j), (k),

    (m), (n) and (o) are no longer in issue and are deemed to have been satisfied.

    
    

43. Before determining whether the rule criteria have been met, it is necessary to address petitioner's concern that the agency has interpreted its rules in an overly restrictive manner. More specifically, FAS contends that the District has incorrectly interpreted subsections (g), (h) and (l) of rule 40E- 4.301(1). In resolving this contention, it must be noted that an administrative interpretation of an agency's own rule is entitled to great weight. See, e. g.,

    Friends of the Everglades, Inc. v. State, Department of Environmental Regulation, 496 So.2d 181 (Fla. 1st DCA 1986). By logical and persuasive evidence, the agency has demonstrated that its interpretation of the rule is in accord with its regulatory permitting authority. That is to say, in construing its rules, the agency considers only those matters that deal with water quality, water quantity and protection of the environment. Although the rule may be susceptible to other (and conceivably more broad) interpretations, the District's interpretation is not an erroneous one, is supported by the evidence of record, and should accordingly be sustained. Cf. State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981)(where agency interpretation of statute is within the range of permissible interpretations, it should be upheld). That construction of the rule will be used by the undersigned in determining whether applicants have complied with all pertinent criteria. In reaching this conclusion, the undersigned has given thoughtful consideration to petitioner's contention that the case of In the Matter of Surface Water Management System Permit et al v. The Florida Land and Water Adjudicatory Commission, 515 So.2d 515 (Fla. 4th DCA 1987), rev. denied,

    525 So.2d 881 (Fla. 1988), compels a different result. In that case, the District had issued a permit authorizing the construction and operation of a system for a 209 unit condominium project, with assorted amenities, on a small island in Lake Okeechobee and inside the Herbert Hoover Dike which surrounds the lake and functions as a water control structure. On review, the Florida Land and Water Adjudicatory Commission (FLWAC) found the applicants had failed to give reasonable assurances that then numbered subsections (b), (d) and (l) of rule 40E-4.301(1) had been satisfied since, among other things, the presence of a system, project and individuals would "impinge on the District's ability to regulate the level of Lake Okeechobee," a statutory duty. Id. at 1290. The FLWAC also noted that the state then had in effect a legislatively mandated policy of "restoring and protecting Lake Okeechobee" and that the permit was in direct conflict with the public policy and as such contravened the criterion requiring applicants to give reasonable assurances that the system was not against public policy. Finding no error in FLWAC's reasoning, the appellate court affirmed that decision. While not positing its specific rationale in this case, FAS presumably contends that consistent with the above case, the District is compelled here to construe its rule 40E-4.301(1)(l) to include state executive order 81-105 and COBRA as constituting public policy. However, the District did just that and considered those aspects of the order and law that pertained to its permitting authority. As to other aspects over which it had no jurisdiction, the District was not required or authorized to deny or modify the permit on that basis, Council of the Lower Keys v. Charley Toppino & Sons, Inc.,

    429 So.2d 67 (Fla. 3d DCA 1983), and thus its interpretation of rule 40E- 4.301(1)(l) was correct. Parenthetically, it is noted that FAS has not contended that the executive order and the federal law contain provisions that would bar all development on coastal barrier islands.

    
    

44. By a preponderance of the credible and accepted evidence, applicants have given reasonable assurances that their proposed surface water management system complies with all criteria set forth in rule 40E-4.301 as well as relevant statutory provisions. The permit should accordingly issue.

    
    

45. Petitioner's request for judicial notice of materials of the South Florida Water Management District filed on February 28, 1991, or almost three months after the record was closed, is hereby denied.

46. Finally, applicants' request for attorney's fees and costs remains pending. At least one full day of the final hearing, and virtually all of the numerous discovery disputes, related to this issue. The request was made under two provisions of chapter 120. First, applicants contend that FAS's request for informal hearing (later converted by the District to a formal hearing) was filed for an improper purpose within the meaning of Subsection 120.59(6), Florida Statutes (1989). That subsection reads in relevant part as follows:

    
    

    (6)(a) In any proceeding pursuant to s. 120.57(1), a prevailing party shall be entitled to recover costs from the nonprevailing adverse party, and shall also be entitled to recover a reasonable attorney fee, as provided herein.

    1. The final order in a proceeding pursuant to s. 120.57(1) shall award costs and a reasonable attorney fee to the prevailing party only where the nonprevailing adverse party has been determined by the hearing officer to have participated in the proceeding for an improper purpose.

    2. In all proceedings pursuant to s. 120.57(1),

    the hearing officer shall determine whether any party, other than a party that is an agency, participated

    in the proceeding for an improper purpose as defined in this subsection. In making such determination, the hearing officer shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same nonagency prevailing party and the same project as an

    adverse party and in which such two or more proceedings the nonprevailing party did not establish either the factual or legal merits of its position and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.

    * * *

    (e) For the purpose of this subsection:

    1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivilous purpose or to needlessly increase the cost

    of licensing or securing the approval of an activity.

    * * *

    3. "Nonprevailing adverse party" shall mean a party that has failed to have substantially changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that

    the party having raised the issue addressed is not a "nonprevailing adverse party." The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term "nonprevailing party" or "prevailing party" be

    deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.

    The purpose of the statute in the context of an environmental case was described in the following manner:

    The obvious purpose of Section 120.59(6), Florida Statutes, as applied to the environmental permitting process is to protect permit applcants from the unnecessary harrassment, delay, and expense of vexatious litigation.

    Harbor Estates v. DER et al, 12 FALR 2392, 2395 (DER, Final Order dated May 18, 1990).

    
    

47. In order to prevail under the foregoing section, applicants must show that petitioner is a nonprevailing adverse party and that petitioner participated in this proceeding for an improper purpose, that is, the request for hearing was filed "primarily to harass, or to cause unnecessary delay, or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." In making this latter determination, paragraph (6)(c) requires that the undersigned consider whether FAS has participated in two or more other such proceedings involving the same project and in which FAS "did not establish either the factual or legal merits of its position". Finally, the same paragraph requires that the undersigned consider "whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings."

    
    

48. A nonprevailing adverse party is defined as one who failed to "substantially" change the outcome of the proposed agency action. In this case the agency (District) proposed to issue the requested permit subject to certain enumerated conditions. Since the undersigned has recommended that the permit be issued as proposed by the District, and without any substantial modification or condition as suggested by FAS, it is concluded that FAS is a nonprevailing adverse party within the meaning of subsection 120.59(6).

    
    

49. The second part of the statutory test requires a determination of whether FAS participated in this proceeding for an improper purpose. Paragraph (6)(c) of the statute provides that a rebuttable presumption of such improper purpose can be established by showing that (a) FAS participated in two or more other proceedings involving the same project and FAS did not establish either the factual or legal merits of its position in those proceedings, and (b) the factual or legal position asserted in this proceeding would have been "cognizable in the previous (two) proceedings." This latter requirement means that FAS's claim in this case could have been adjudicated in the earlier two case in which it participated. The evidence reflects, and FAS concedes, that it triggered administrative hearings in Case Nos. 88-4760 and 90-2415, which involved applications for permits relating to the same Key Island project. As to the first case, a final order was rendered by DER granting the requested permit consistent with the proposed agency action. As to the second case, a final order was entered by DER dismissing the petition for hearing with prejudice on the ground it was untimely, i. e., the petition was filed three months after the point of entry expired. In neither case did FAS "establish (to the agency's satisfaction) either the factual or legal merits of its position." While FAS's counsel suggested at hearing that the undersigned should review all of the evidence and pleadings filed in both cases to make that determination, the undersigned concludes that the final agency action is the best evidence of whether the issues raised by FAS were meritorious. The final orders in those

    two cases reflect they were not. Although both final orders are now on appeal,4 for purposes of this recommended order the undersigned presumes that the final agency action is valid. Finally, in this proceeding FAS has raised the contention that the surface water management system to be used with the project will enable development to occur on a coastal barrier island and this would have an adverse environmental impact on the island and its adjacent resources. Since this factual issue could not have been wholly adjudicated in the context of a permitting proceeding for a wastewater treatment plant or a subaquaous line, it is concluded that such a position was not cognizable in the previous two proceedings. Further, despite some clearly damaging inferential evidence against FAS, it is concluded that the totality of the evidence does not support a conclusion that FAS's petition for hearing was filed for an improper purpose within the meaning of Subsection 120.59(6), Florida Statutes (1989). Therefore, as to this claim for relief, the request is denied. 5/

    
    

50. Applicants have also requested sanctions under Subsection 120.57(1)(b)5., Florida Statutes (1989) on the theory that the initial pleading in this cause (request for hearing) was "interposed for improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation." While the definition of the term "improper purpose" is almost identical in both subsections 120.57(1)(b)5. and 120.59(6), the former statute does not require the tribunal to determine if FAS participated as an adverse party in prior proceedings involving the same project. Thus, it is only necessary to determine if FAS's initial pleading (as amended) was filed for one of the proscribed purposes. The case of Mercedes Lighting and Electrical Supply, Inc. v. State, Department of General Services,

560 So.2d 272 (Fla. 1st DCA 1990), is helpful in resolving this issue. In Mercedes, the court held that a proper purpose of a section 120.57 proceeding is to allow persons affected by intended decisions of state agencies the opportunity to change the agency's mind and that a frivolous purpose is "one which is of little significance or importance in the context of the goal of administrative proceedings." Id. at 278. In this case, FAS has sought to change the agency's mind as to how rule 40E-4.301(1) should be construed in the context of a permitting case involving a barrier island, a proper purpose of a section 120.57 proceeding. Moreover, that purpose was not one having little significance or importance in the regulatory setting. Although FAS was unsuccessful, it cannot be said that FAS did not have "a reasonably clear legal justification for bringing (the) proceeding." Id. at 278-79. Therefore, the motion for sanctions under subsection 120.57(1)(b)5. is denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in

accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22 day of March, 1991.

ENDNOTES

1/ Also filing a petition for informal hearing was Harry J. Sichi, trustee. However, Sichi's petition was dismissed by the undersigned for failure to state a cause of action but with leave to file an amended petition. Because Sichi elected not to file an amended petition, he was dismissed as a party to this action.

2/ The District is proposing to permit a system for up to 75 homes. However, the City of Naples has restricted the development to no more than 42 homes.

3/ In fairness to one FAS witness, it must be pointed out that applicants refused to allow that witness access to their property.

4/ By a request for judicial notice of decision of appeal filed on March 21, 1991, applicants have advised that they received a favorable decision in the case involving an appeal by FAS from a DER order authorizing the construction of a wastewater treatment plant (Case No. 90-2415) and have requested that the undersigned take judicial notice of the decision. Since this Recommended Order is being issued prior to the time in which FAS can respond to the request, this matter should more appropriately be submitted to the District.

5/ In its memorandum of law in opposition to the request, FAS argues principally that applicants' claim for attorney's fees and costs infringes upon its constitutional rights of free speech, association and to seek legal redress, all matters beyond the undersigned's authority to adjudicate.

1. Partially adopted in findings of fact 14 and 16.

2. Partially adopted in findings of fact 11, 12 and 25.

3. Partially adopted in finding of fact 5.

7. Rejected as being unnecessary. 8A. Rejected as being unnecessary.

1. Partially adopted in findings of fact 4, 5, 21 and 27.

2. Partially adopted in findings of fact 12, 14 and 27.

3. Partially adopted in findings of fact 13, 14 and 17.

4. Partially adopted in findings of fact 12, 13, 27, 28, 30 and 34.

5. Partially adopted in findings of fact 25 and 30.

6. Partially adopted in findings of fact 9, 27, 30 and 34.

1. Partially adopted in findings of fact 30 and 34.

2. Rejected as being unnecessary.

3. Partially adopted in finding of fact 22.

4. Partially adopted in finding of fact 4.

5. Rejected as being unnecessary.

6. Rejected as being essentially argument of counsel.

7. Rejected as being a conclusion of law.

8. Partially adopted in finding of fact 4.

Note - Where findings have been partially adopted, the remainder has been rejected as being contrary to the more credible evidence, argument of counsel, irrelevant, subordinate, unnecessary, or a conclusion of law.

Respondent:

18-29. Partially adopted in findings of fact 18-22.

1. Partially adopted in finding of fact 19.

2. Rejected as being unnecessary.

   Applicants:

   
   

   1-2. Covered in procedural background.

   3.	Partially	adopted	in	finding	of	fact	1.
   4.	Partially	adopted	in	finding	of	fact	6.
   5.	Partially	adopted	in	finding	of	fact	1.
   6-7.	Partially	adopted	in	finding	of	fact	8.
   8-9.	Partially	adopted	in	finding	of	fact	7.
   10.	Partially	adopted	in	finding	of	fact	5.
   11.	Partially	adopted	in	finding	of	fact	9.
   12.	Partially	adopted	in	finding	of	fact	11.
   13-16.	Partially	adopted	in	finding	of	fact	12.
   17-18.	Partially	adopted	in	finding	of	fact	14.
   19-23.	Partially	adopted	in	findings of fact 14-16.
   24-25.	Partially	adopted	in	finding of fact 23.
   26.	Partially	adopted	in	finding of fact 24.
   27.	Partially	adopted	in	finding of fact 26.
   28-29.	Partially	adopted	in	finding of fact 24.
   30.	Partially	adopted	in	finding of fact 25.
   31-33.	Partially	adopted	in	finding of fact 26.
   34-40.	Partially	adopted	in	finding of fact 27.
   41-46.	Partially	adopted	in	findings of fact 17, 23 and 30.
   47-54.	Partially	adopted	in	findings of fact 34-38.

   
   

   Note - Where the proposed findings of the agency and applicants have been partially used, the remainder has been rejected as being irrevelant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law.

   
   

   COPIES FURNISHED:

   
   

   Joseph Z. Fleming, Esquire 620 Ingraham Building

   25 S. E. Second Avenue Miami, FL 33131

   
   

   Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire 2000 Palm Beach Lakes Blvd. Suite 900

   West Palm Beach, FL 33409

   
   

   John J. Fumero, Esquire

   P. O. Box 24680

   West Palm Beach, FL 33416-4680

   
   

   John Wodraska, Executive Director

   South Florida Water Management District

   P. O. Box 24680

   West Palm Beach, FL 33416-4680

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   FLORIDA AUDUBON SOCIETY, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 90-2402

   ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, JOHN D. REMINGTON, ) and BOLTON S. DRACKETT, )

   )

   Respondents. )

   )

   
   

   ORDER DECLINING REMAND

   
   

   This cause involves an application by respondents, John D. Remington and Bolton S. Drackett (applicants), for a surface water management system permit to be issued by respondent, South Florida Water Management District (District).

   The application is opposed by petitioner, Florida Audubon Society (FAS). After a lengthy evidentiary hearing in this matter was concluded, the undersigned issued a recommended order on March 22, 1991, recommending that the application be granted.

   
   

   Applicants' project requires the issuance of several permits from at least two state regulatory agencies, the District and the Department of Environmental Regulation (DER). As to DER, that agency has issued a permit authorizing applicants to construct a wastewater treatment plant on the island where the project will be located. In the case at bar, applicants have proposed to construct the surface water management system more than one hundred feet from the wastewater treatment plant. They did so in order to comply with a District water quality criterion which is found in section 3.2.2.8 of a document known as the Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989. That document has been adopted and incorporated by reference in Rule 40E-4.091, Florida Administrative Code. Section 3.2.2.8 reads as follows:

   
   

   Sewage treatment percolation ponds - Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry

   retention/detention areas. Additional calculations

   by the applicant may be necessary in unusual cases requiring deviations from these dimensions. (Emphasis added)

   
   

   During the course of the evidentiary hearing in this case, it was established that applicants had complied with the above criterion in that the sewage treatment plant was more than one hundred feet from the proposed system. It was also established that, if the criterion is satisfied as was done here, the District does not consider the impact of the sewage treatment plant on the proposed system. Even so, FAS, through its counsel, attempted to offer evidence to show that the sewage treatment plant would adversely impact the system.

   After objections to this offer of evidence were lodged by applicants and the District, the objections were sustained and FAS's counsel was permitted to make a proffer on this issue into the record.

   
   

   On June 14, 1991, the District issued an Order of Remand, a copy of which was filed with the Division of Administrative Hearings on July 5, 1991. The Order reads in pertinent part as follows:

   
   

   This Order of Remand is necessitated by the District's determination that the Hearing Officer's (Finding of Fact) contained in paragraph 35 of the Recommended Order which states:

   "35. Another principal contention raised by petitioner concerns the alleged impacts from

   the placement by applicants of a sewage treatment plant on the island to serve the proposed development. As noted in finding of fact 7, the authorization for applicants to do so was given by DER in Case No.

   90-2415. The sewage treatment plant is not a part of the system and the permitting for such a facility is governed by rules of DER and not the District.

   Moreover, a District rule, not challenged by FAS and accepted by the undersigned as valid, provides that as long as a treatment plant is more than one hundred feet from the detention areas and would not interfere with the functioning of the system, the District need

   not consider its impact on the surface water management system. In this case, the setback requirement was met and the District properly exluded this matter from its review and consideration." (Emphasis added by District)

   
   

   is inconsistent with the District's interpretation that the rule in question is a rebuttable presumption. The rule in question, section 3.2.2.8 of the Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District states:

   
   

   (rule omitted)

   
   

   Therefore, petitioner should have been allowed to introduce evidence on which the Hearing Officer could make a determination or the proffers made by the petitioner should have been considered in determining whether the 100 foot seperation (sic) of the sewage treatment plant from the surface water management system was adequate.

   It is ordered that this case be remanded to the Hearing Officer for the following very limited purpose:

   
   

   To conduct an expedited hearing to take additional testimony on the very limited issue of whether the 100 foot separation of the sewage treatment plant from the surface water management system was adequate and submit a Supplemental Recommended Order including findings of fact and conclusions of law on this limited issue.

   
   

   Under the plain and unambiguous terms of section 3.2.2.8, an applicant need only show that its proposed system is more than one hundred feet from a sewage treatment plant in order to meet relevant District water quality requirements.

   This interpretation of the rule is consistent with both the representation at hearing by District counsel and the testimony of District witnesses who addressed this narrow issue. Thus, the only factual issue raised by section

   3.2.2.8 is whether the two systems are more than one hundred feet apart.

   
   

   It is respectfully submitted that there are two reasons why a remand is inappropriate. First, the Order of Remand establishes "a rebuttable presumption" as to the rule in question. That is, the Order of Remand requires the undersigned to use a legal presumption which the District has no authority to impose. This is because "a state executive branch agency lacks implied or inherent power to fashion, adopt, or apply a legal presumption for application in an administrative proceeding in the absence of specific authority in a statute or the constitution." McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 16 FLW D1591, D1592 (Fla. 1st DCA, June 13, 1991). Since the undersigned can find no specific statutory or constitutional authority for the District to create the legal presumption in question, it is respectfully concluded that the District's Order should not be accepted.

   
   

   Secondly, in preparing the design of the project and their case in chief, the applicants relied upon the District's published rules. Consequently, and in accord with section 3.2.2.8, they designed the project so that the system would be more than one hundred feet from the site of the sewage treatment plant. In its preliminary review of the application, the District concluded the rule had been satisfied and thus did not consider the impact of the sewage treatment plant on the system. Moreover, at hearing the District witnesses reiterated this interpretation of the rule. By imposing a newly created legal presumption as to section 3.2.2.8 after the hearing has been concluded, the District has implicitly said that its rules were never intended to provide absolute certainty to an applicant. Therefore, even though an applicant has relied upon a published rule and satisfied its facial requirements, and rule compliance is no longer in issue, an opposing party may nonetheless present evidence on matters outside the scope of the rule to show that the rule has not been satisfied.

   However, this reasoning contravenes the well established judicial tenet that until amended or abrogated, a rule should be honored by an agency. See, e. g., DeCarion and Roberts v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989). In other words, where a rule's terms are plain and unambiguous, as is the case here, it should provide "absolute certainty" to a party litigant. Id. at 1084. Since the Order of Remand would require the undersigned to ignore a valid rule which has not been challenged by FAS, the Order of Remand should not be accepted.

   Respectfully submitted this 29th day of July, 1991, in Tallahassee, Florida.

   
   

   
   

   DONALD R. ALEXANDER

   Hearing Officer

   Division of Administrative Hearings DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, FL 32399-1550

   (904)488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1991.

   
   

   COPIES FURNISHED:

   
   

   Joseph Z. Fleming, Esquire 620 Ingraham Building

   25 S. E. Second Avenue Miami, FL 33131

   
   

   Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire

   2000 Palm Beach Lakes Boulevard Suite 900

   West Palm Beach, FL 33409

   
   

   John J. Fumero, Esquire

   P. O. Box 24680

   West Palm Beach, FL 33416-4680

   
   

   Timer E. Powers, Interim Executive Director South Florida Water Management District

   P. O. Box 24680

   West Palm Beach, FL 33416-4680

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   FLORIDA AUDUBON SOCIETY, )

   )

   Petitioner, )

   vs. ) CASE NO. 90-2402

   SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, JOHN D. REMINGTON, ) and BOLTON S. DRACKETT, )

   )

   Respondents. )

   )

   
   

   SUPPLEMENTAL RECOMMENDED ORDER

   
   

   Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 11, 12 and 13, 1992, in West Palm Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Joseph Z. Fleming, Esquire

   620 Ingraham Building

   25 S.E. Second Avenue Miami, Florida 33131

   
   

   For Respondent: John J. Fumero, Esquire

   Agency Post Office Box 24680

   West Palm Beach, Florida 33146-4680

   
   

   For Respondents: Terry E. Lewis, Esquire

   Applicants Kevin S. Hennessy, Esquire Elizabeth G. Lowery, Esquire

   Suite 900

   2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

   
   

   STATEMENT OF THE ISSUES

   
   

   The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.

   
   

   PRELIMINARY STATEMENT

   
   

   This proceeding involves an application by respondents/applicants, John D. Remington and Bolton S. Drackett, seeking the issuance of a permit from respondent, South Florida Water Management District (District), to authorize the construction and operation of a surface water management system on Keewaydin Island in Naples, Florida. The application is opposed by petitioner, Florida Audubon Society (FAS). An evidentiary hearing on the application was held on October 22-25 and November 5-7, 1990, in Naples, Florida. During the course of the hearing, the undersigned sustained objections by applicants and the District to FAS's efforts to introduce evidence regarding the impacts to the system from the operation of a wastewater treatment plant, which is the subject of a permit

   from the Department of Environmental Regulation. However, FAS was allowed to make proffers alleging the inadequacy of the distance between the plant's filter fields and the proposed system. Thereafter, the undersigned issued a recommended order on March 22, 1991, recommending that the permit be issued. On June 14, 1992, the District issued an order of remand directing the undersigned to conduct an expedited hearing "to take additional testimony on the very limited issue of whether the 100 foot seperation (sic) of the sewage treatment plant from the surface water management system was adequate." In so doing, the District noted that the undersigned had misinterpreted a relevant District rule, and that applicants' compliance with the rule created only a rebuttable presumption of compliance with other District rules. Accordingly, it remanded the case for the purpose of allowing FAS to present evidence to overcome that presumption. By order dated July 29, 1991, the undersigned declined to accept the remand. Thereafter, the District entered a final order issuing the permit.

   Florida Audubon Society v. South Florida Water Management District, et al., 13

   F.A.L.R. 4169 (SFWMD, October 15, 1991). Petitioner then filed an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC). On January 30, 1992, the FLWAC issued a Corrected Order of Remand in which, by a 3-2 vote, it remanded the case to the District with directions to remand the proceeding to the undersigned and to conduct proceedings as originally ordered in the District's Order of Remand. Thereafter, on February 21, 1992, the District issued its second order of remand directing the undersigned to conduct an expedited hearing on the limited issue described above.

   
   

   By notice of hearing dated March 15, 1992, a final hearing was scheduled on May 11-13, 1992, in West Palm Beach, Florida. At final hearing, petitioner presented the testimony of Dr. David A. Chin, accepted as an expert in water resources engineering and related subfields, Dr. Harold R. Wanless, accepted as an expert in geology and related subfields, and Dr. Bernard J. Yokel, accepted as an expert in wetlands biology and related subfields. Petitioner also offered petitioner's exhibits A-N. All exhibits were received in evidence except exhibits L1, L2 and M. Exhibit J is the prefiled testimony of Dr. Mark Abbott Benedict who, by agreement of the parties, did not appear at final hearing.

   Applicants presented the testimony of Clifford Schneider, accepted as an expert in civil engineering, utility systems and site development, Ross McWilliams, accepted as an expert in biology, marine biology, water quality, dredge and fill permitting, environmental mitigation and restoration, and dredge and fill restoration, Stephen A. Means, accepted as an expert in civil engineering, hydrology and surface water management, and Thomas M. Missimer, accepted as an expert in hydrology, geology and water quality. Also, they offered applicants' exhibits A-G and I-L. All exhibits were received in evidence. The District presented the testimony of Richard Rogers, accepted as an expert in civil engineering, hydrology, and surface water management regulation and permitting. Also, it offered District exhibits A and B which were received in evidence.

   
   

   The transcript of hearing (six volumes) was filed on June 10, 1992.

   Proposed findings of fact and conclusions of law were originally due on June 30, 1992. At the request of petitioner, this time was extended to July 17, 1992, and then again to July 22, 1992, and proposed recommended orders were filed by the parties on that date. A ruling on each proposed finding has been made in the Appendix attached to this Supplemental Recommended Order.

   SUPPLEMENTAL FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following supplemental findings of fact are determined:

   
   

   1. Background

      
      

      1. Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit.

         
         

      2. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below.

         
         

   2. A Brief Description of the Development and System

      
      

      1. The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete.

         
         

      2. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island.

      3. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments.

         
         

      4. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes.

         
         

   3. The Wastewater Treatment Plant

      
      

      1. The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to:

         
         

         construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets

         1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to

         0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well.

         
         

      2. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time

         of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards.

         
         

      3. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin.

         
         

      4. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day.

         
         

      5. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time.

      6. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake.

         
         

   4. Adequacy of Separation Between Plant and System

      
      

      1. Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows:

         
         

         Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions.

         
         

         The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain

         large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground.

         The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike.

         
         

      2. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields.

         
         

         1. The Computer Models

            
            

      3. As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds.

      4. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit.

         
         

      5. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system.

         
         

      6. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget.

         
         

      7. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model

         overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow.

         The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert.

         
         

         1. Water Quantity Impacts

            
            

      8. There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant.

         
         

      9. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system.

         
         

      10. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows.

          
          

          1. Water Quality Impacts

             
             

      11. The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall.

          
          

      12. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards.

      13. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall.

          
          

          1. Adverse Environmental Impacts

          
          

      14. There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies.

          
          

      15. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers.

          
          

   5. Miscellaneous

   
   

   1. During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings.

      
      

   2. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions.

   3. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions.

      
      

   4. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

      
      

   6. As the applicants in this cause, Remington and Drackett bear the ultimate burden of persuasion of entitlement to the requested permit by the preponderance of the evidence. See, e.g., Cordes v. State, Department of Environmental Regulation, 582 So.2d 652, 654 (Fla. 1st DCA 1991). However, as to the issue presented on remand, the burden of going forward initially rests upon FAS to present evidence to rebut the presumption that the separation between the plant and system is adequate. Assuming that such a burden is met, the burden shifts back to the applicants to counter and overcome that showing.

      
      

   7. Initially, a brief discussion is appropriate regarding two evidentiary matters. First, petitioner has requested that the undersigned take official notice of seven documents. With the exception of item six, the request is hereby denied. Items one through five fail to qualify for official recognition under the evidence code, and item seven is irrelevant to the issues in this case. 1/ Second, during petitioner's cross-examination of the District witness, who happened to be the last witness presented during the remand hearing, petitioner moved for a continued hearing and to strike the testimony of the witness. Although the motions were properly denied at hearing, some additional explanation of those rulings is necessary. First, petitioner objected to the fact that the District expert did not have in his possession at hearing all materials upon which he had relied in formulating his opinion. Petitioner has not cited, and the undersigned is unaware of, any authority in the evidence code or decisional law that requires an expert to bring such materials to hearing. Aside from this evidentiary shortcoming, the record also shows that, although the parties were given the opportunity to conduct discovery, petitioner did not utilize discovery in an effort to obtain the documents, and petitioner did not subpoena the production of the documents for final hearing. Moreover, there was no showing that even if the documents were produced by the witness, they would be admissible as competent evidence in this proceeding. Under these circumstances, petitioner's request for a continuance was without merit, its complaint that due process rights were violated was likewise unavailing, and there was no basis to strike the testimony of the witness. 2/ Accordingly, the rulings are hereby reaffirmed.

   8. A clear understanding of the issue on remand is also appropriate. It is not the purpose of this proceeding to relitigate the merits of whether a wastewater treatment plant should be permitted on Key Island or whether the operation of the plant, as permitted by DER, would cause violations of DER rules and regulations. Those issues were considered by DER before making its decision to issue a permit, and because that proceeding has long since been concluded,

      3/ the issues are deemed to have already been adjudicated. Rather, the singular purpose of this remand, as expressed in the District's Order of Remand dated June 14, 1991, is "the very limited purpose" of determining "whether the

      100 foot seperation (sic) of the sewage treatment plant from the surface water management system was adequate." Thus, this proceeding shall be confined to that "very limited" issue.

      
      

   9. Applicants have complied with the separation requirements of section

      3.2.2.8 of the Basis of Review by placing the swales of the system at least one hundred ten feet from the filter fields at the closest point. According to the Order of Remand, this creates a rebuttable presumption that the separation is adequate. The burden then shifted to FAS to rebut this presumption of adequacy. However, it failed to satisfy the burden. Even if one accepts arguendo that FAS's proof adequately rebutted this presumption, applicants' rebuttal proof nonetheless was sufficient to dispel that showing. This being so, it is concluded that the more credible and persuasive evidence supports a conclusion that the separation between the plant and system is adequate.

      
      

   10. In the prior Recommended Order submitted on March 22, 1991, the undersigned found that all criteria set forth in Rule 40E-4.301 had been satisfied by the applicants. After reviewing the additional record in the remand proceeding, it is concluded that all prior findings should be reaffirmed. Therefore, it is concluded that all criteria have been met and the permit should be issued.

       
       

   11. In its proposed order, petitioner has contended that it "would be denied not only a (sic) procedural but evidentiary rights" because of several alleged errors in the conduct of this proceeding. First, it notes that the District has allowed "major and substantial revisions to an application on a remand hearing". It also complains that the District has not "investigated materials (such as the report of Dr. Chin)", and the proceeding is flawed by virtue of the District "calling witnesses and naming them after the discovery period ended and, then, allowing their reports to be reviewed by witnesses who took the stand in a manner that would not allow the reports to be produced". Taking the last point first, after the date on which the parties were required to submit a witness list, the District filed a motion to supplement witness list by adding the name of an expert just retained by the District as a consultant. FAS then lodged an objection, and the motion to supplement was denied by order dated May 4, 1992. However, the consultant was retained by the District in preparation for trial. At the remand hearing, District witness Rogers gave opinion testimony regarding the adequacy of the separation. Among other things, his opinion was based on certain conversations with and computer runs made by the consultant. Although not clearly stated, petitioner appears to argue that witness Rogers was able to rely on the consultant's computer runs without actually producing them at hearing, and thus its due process rights were violated. 4/ As noted in paragraph 3 of the conclusions of law, there is no requirement that an expert voluntarily bring to hearing all documents relied upon in formulating an opinion. Further, as long as the necessary foundation is laid to show that the opinion is based on sufficient data, as was done here, the opinion is admissible. Finally, the use of an expert employed by a party in preparation for trial and who is not expected to be called as a witness is

       clearly recognized under Rule 1.280(4)(B), Florida Rules of Civil Procedure, and the same rule provided FAS with the means, if appropriate, to discover that person's facts and opinions relevant to this controversy. It is noted parenthetically that even if the testimony of this witness was disregarded, thus rendering this issue moot, there is still a preponderance of evidence to support the findings and conclusions reached herein. Thus, there can be no procedural or substantive error as claimed by FAS. As to the contention that the District has not "investigated materials such as the report of Dr. Chin, such a contention is without merit. The report in question was tendered into evidence, its author was subjected to vigorous cross-examination by opposing counsel, and it was the subject of lengthy commentary and rebuttal evidence by other witnesses. Thus, a thorough evaluation (investigation) of the report has been made. As to the contention that the District has allowed "major and substantial revisions to an application on a remand hearing", it is noted that the two special conditions discussed in findings of fact 29 and 30 are extremely minor in nature, do not affect the design of the overall system, and can hardly be characterized as "major and substantial". Moreover, petitioner has not demonstrated how these two minor changes prejudiced its rights, particularly since both conditions are designed to insure that the system operates in accordance with District criteria. Hopwood v. State Department of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981); Key Biscayne Council v.

       State of Fla., Department of Natural Resources, 579 So.2d 293, 295 (Fla. 3d DCA 1991); Manatee County v. State of Fla., Department of Environmental Regulation,

       429 So.2d 360, 362 (Fla. 1st DCA 1983); The Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772, 774 (Fla. 1st DCA 1991). Petitioner also argues its rights were violated on the following theory:

       
       

       1. s a matter of law, if the DER sewage treatment plant effluent permit were not to be regarded as the basis for analysis then the DER proceedings would have to be reopened, or reviewed. The cumulative impact analysis which DER follows would have to be applied, since it was not applied in this matter. (page 38, proposed recommended order)

       
       

       Although not clearly articulated, it is assumed that petitioner is contending that, like a chapter 403 permitting case, a cumulative impact analysis is likewise required in a chapter 373 permitting case, such as this. This contention is apparently premised on the court's recent holding in The Conservancy, Inc., supra, where the court held that in a DER proceeding involving the proposed issuance of a dredge and fill permit to the same applicants to imbed a sewage pipeline system in Gordon Pass (which flows between the mainland portion of the City of Naples and Key Island), the agency was required to consider not only the impacts of the dredge and fill activities, but also "the cumulative impacts of the permitted project (on the island)." This ruling was based largely upon language found in Section 403.919, Florida Statutes, which required DER to consider not only the impact of the project for which the dredge and fill permit was sought, but also any other relevant activities that were closely linked or causally related to the proposed dredging and filling. Since chapter 373 does not contain a similar provision, it is concluded that the above holding does not apply to this proceeding. In any event, after the issuance of the court's opinion, a cumulative impact analysis was made in DOAH Case No. 88-4760 for the entire project on Key Island.

       Finally, the contention that the swale system has been "totally change(d)" during the remand hearing has been considered and rejected. All other arguments not discussed herein are likewise rejected.

       
       

   12. Applicants' renewed motion for attorney's fees and costs is hereby denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District enter a final order granting the requested

permit in accordance with the District's proposed agency action dated March 28, 1990. Those special conditions described in findings of fact 29 and 30 should also be incorporated into the permit.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of August, 1992.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992.

ENDNOTES

1/ See, for example, Ernst v. South Florida Water Management District et al,

10 F.A.L.R. 3205 at 3225-28 (SFWMD, August 13, 1987), where a request for official recognition of similar items was denied.

2/ Even if the testimony of witness Rogers was disregarded, as FAS has requested, there is still a preponderance of credible and persuasive evidence to support the findings and conclusions made in this Supplemental Recommended Order.

3/ That proceeding was concluded when the final agency order granting the permit was affirmed in a per curium decision. Florida Audubon Society v.

Remington, 577 So.2d 1331 (Fla. 1st DCA 1991).

4/ The proposed order actually alleges that the consultant prepared certain "reports". However, this assertion is incorrect since the record reflects that only computer runs were made by the consultant.

APPENDIX

Petitioner:

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 4.

3. Rejected as being unnecessary.

4A. Partially accepted in preliminary statement and findings of fact 17 - 19.

4B. Partially accepted in preliminary statement and findings of fact 20 - 27.

4C. Partially accepted in preliminary statement and findings of fact 20 - 27.

4D. Partially accepted in the preliminary statement. 5A. Partially accepted in findings of fact 20 - 27. 5B. Partially accepted in findings of fact 20 - 27. 5C. Partially accepted in findings of fact 20 - 27. 5D. Partially accepted in findings of fact 15 - 27.

1. Partially accepted in findings of fact 15 - 27 and 31.

2. Rejected as being contrary to the more credible and persuasive evidence.

Applicants:

1-10. Covered in preliminary statement.

1. Partially accepted in finding of fact 4.

2. Partially accepted in findings of fact 4 and 5.

13-20. Partially accepted in findings of fact 7-12 and 16. 21-35. Partially accepted in findings of fact 11 and 15-19. 36-38. Partially accepted in findings of fact 20-22.

39-42. Partially accepted in findings of fact 23-25.

43-44. Partially accepted in findings of fact 26 and 27. 45-46. Partially accepted in finding of fact 28.

47-51. Rejected since the undersigned has declined to award fees and costs.

Agency:

1. Partially accepted in finding of fact 4.

2. Partially accepted in finding of fact 1.

3. Partially accepted in findings of fact 5 and 6.

4. Partially accepted in finding of fact 2.

5. Partially accepted in finding of fact 13.

6. Partially accepted in finding of fact 12.

7. Partially accepted in finding of fact 5.

8-10. Partially accepted in findings of fact 7-12. 11-23. Partially accepted in findings of fact 15-19.

1. Covered in preliminary statement and finding of fact 19.

2. Partially accepted in finding of fact 20.

3. Partially accepted in findings of fact 23 and 24.

4. Partially accepted in finding of fact 26.

Note - Where proposed findings have been partially accepted, the remainder has been rejected as being unnecessary, cumulative, not supported by the evidence, subordinate, irrevevant or a conclusion of law.

COPIES FURNISHED:

Joseph Z. Fleming, Esquire 620 Ingraham Building

25 S.E. Second Avenue Miami, Florida 33131

John J. Fumero, Esquire Post Office Box 24680

West Palm Beach, Florida 33146-4680

Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire Elizabeth G. Lowery, Esquire Suite 900

2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

Tilford C. Creel

Interim Executive Director Post Office Box 24680

West Palm Beach, Florida 33416

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002402

Orders for Case No: 90-002402