STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WIREGRASS RANCH, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-3658

) SADDLEBROOK RESORTS, INC., and ) SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

On December 2, 3, and 4, 1991, and February 11, 1992, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas P. Manson, Esquire

Foley & Lardner

101 East Kennedy Boulevard Suite 3650

Tampa, Florida 33602

For Respondent Stephen R. Patton, Esquire Saddlebrook: Jeffrey A. Hall, Esquire

Kirkland & Ellis

1. East Randolph Drive Chicago, Illinois 60601

   
   

   Enola T. Brown, Esquire McWhirter, Grandoff & Reeves

2. East Kennedy Boulevard Tampa, Florida 33602

For Respondent Edward Helvenston, Esquire SWFWMD: Mark F. Lapp, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609 STATEMENT OF THE ISSUE

The issue is whether the application of the Respondent, Saddlebrook Resorts, Inc. ("Saddlebrook"), for surface water management permit no.

497318.00, should be approved.

PRELIMINARY STATEMENT

On February 8, 1990, Saddlebrook filed an application for management and storage of surface water ("MSSW") permit no. 497318.00 with the Southwest Florida Water Management District ("SWFWMD"). This application sought SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system.

On May 3, 1991, SWFWMD issued a Notice of Proposed Agency Action and Staff Report Recommending Approval of Saddlebrook's application. On May 20, 1991, Wiregrass Ranch, Inc. ("Wiregrass"), filed a Petition for Formal Administrative Hearing contesting the issuance of Saddlebrook's MSSW permit.

At the formal administrative hearing, Saddlebrook presented the testimony of the following witnesses in its case-in-chief: Dr. John Garlanger, a geotechnical and water resources engineer; Wojciech M. Mroz, a drainage engineer employed as supervisor of the Surface Water Permitting Section of SWFWMD's Brooksville Permitting Department; Conley C. Black, a drainage engineer employed in the Surface Water Permitting Section of SWFWMD's Brooksville Permitting Department; David Hamstra, a drainage engineer; David Sauskojus, an environmental scientist employed in SWFWMD's Brooksville Permitting Department; and Tedd Roberts, an environmental engineer. In its case in opposition, Wiregrass presented the testimony of James Don Porter, one of the owners of Wiregrass; David Fuxan, a civil engineer; Dean M. Mades; and Richard Callahan, an environmental consultant. In rebuttal, Saddlebrook presented the testimony of Dr. Garlanger and Mr. Hamstra, and SWFWMD presented the testimony of Mr.

Mroz.

Saddlebrook had Saddlebrook Exhibits 1-10, 10A, 11-31, and 34 admitted in evidence. Wiregrass had Wiregrass Exhibits 2, 3A-I, 6A-M, 7-15, 29, 32-36, and

38 admitted in evidence.

At the end of the final hearing, the parties ordered a transcript of the final hearing, and the parties were given ten days from the filing of the transcript for filing proposed recommended orders. The transcript was filed on February 21, 1992. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 91

FINDINGS OF FACT

1. The Parties and the Property.

   
   

   1. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54.

      
      

   2. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles.

      
      

   3. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat.,

      Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County.

      
      

   4. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall.

      
      

   5. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property.

      
      

   6. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters.

      
      

   7. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs.

      
      

   8. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities.

      
      

   9. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures.

      
      

2. The Porters' Civil Action Against Saddlebrook.

   
   

   1. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges.

      
      

   2. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels.

      
      

   3. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action.

      
      

   4. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system.

      
      

   5. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges.

      
      

   6. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented.

      
      

   7. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application.

3. Saddlebrook's MSSW Permit Application.

   
   

   1. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls.

      
      

   2. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991.

      
      

   3. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions.

      
      

   4. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete.

      
      

4. SWFWMD's Review of Saddlebrook's Application.

   
   

   1. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information.

      
      

   2. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions.

      
      

   3. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984.

      
      

   4. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application.

      
      

   5. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources.

      
      

   6. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn.

   7. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4.

      
      

   8. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301.

      
      

   9. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application.

      
      

5. Compliance With SWFWMD Permitting Criteria.

   
   

   1. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts.

      
      

      1. Water Quantity.

         
         

   2. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition.

      
      

   3. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges.

      
      

   4. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges.

      
      

   5. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973.

      
      

      1. Flood Protection.

         
         

   6. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that

      encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands.

      
      

   7. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards.

      
      

   8. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property.

      
      

      1. Water Quality.

         
         

   9. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours.

      
      

   10. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards.

       
       

       1. Wetland Impacts.

       
       

   11. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands.

       
       

   12. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area.

       
       

   13. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements.

       
       

6. Wiregrass' Petition.

   
   

   1. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow

      discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief":

      
      

      1. The application, as submitted, contains insufficient storage to meet water quality criteria.

      2. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic]

         as required by the DISTRICT criteria.

      3. The application, as submitted, contains calculations based on erroneous hydraulic gradients.

      4. The application, as submitted, will result in storage volumes insufficient to meet water

         quality criteria as required by DISTRICT criteria.

      5. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria.

      6. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further,

         the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources.

         
         

   2. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition.

      
      

7. Objections Raised by Wiregrass At The Hearing.

1. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds:

   
   

   1. For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984.

   2. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements

      of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan

   3. Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water

      . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system.

2. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.)

   
   

3. In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing.

   
   

   1. The 1973 Pre-Development Date.

      
      

4. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property.

   
   

5. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges.

   
   

6. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels.

   
   

7. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels.

   
   

8. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application.

   
   

9. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below.

   
   

10. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels.

    1. Other Governmental Agencies' Requirements.

       
       

11. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies."

    
    

12. SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit.

    
    

13. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and

    96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than

    100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton

    373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations.

    
    

14. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements:

    
    

    The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit.

    
    

    In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County:

    
    

    The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.)

    
    

15. Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance.

    
    

    1. Annual Volume of Runoff.

    
    

16. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301,

    as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts.

    
    

17. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property.

    
    

18. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches.

    
    

19. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches.

    
    

20. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property.

    
    

21. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass.

    
    

22. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled.

    
    

23. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff.

    
    

24. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future.

    
    

25. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise.

    
    

26. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are

    approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.

    
    

    CONCLUSIONS OF LAW

    
    

    1. General.

       
       

27. The Division of Adminstrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See Section 120.57(1), Fla. Stat. (1991).

    
    

28. Saddlebrook has sought, and SWFWMD proposes to issue, conceptual approval of the redesign of Saddlebrook's surface water management system. A surface water management permit must be obtained from SWFWMD for this proposed alteration to Saddlebrook's drainage system. F.A.C. Rule 40D-4.041(1).

    
    

29. Chapter 373, Part IV, Florida Statutes, and SWFWMD's rules for management and storage of surface water, F.A.C. Chapter 40D-4, which includes SWFWMD's Basis of Review, govern the issuance of the permit.

    
    

30. F.A.C. Rule 40D-4.301(1) provides that, in order to obtain an MSSW permit, "an applicant must give reasonable assurances that the surface water management system" satisfies various general conditions.

    
    

31. Under F.A.C. Rule 40D-4.301(2), "[t]he standards and criteria contained in the Basis of Review . . . apply to the design and performance of surface water management systems to provide the reasonable assurances required by Rule 40D-4.301(1)." See also F.A.C. Rule 40D-4.091.

    
    

    1. Burden of Proof.

       
       

32. As the applicant, Saddlebrook has the burden of demonstrating entitlement to the permit for which it has applied. Florida Dep't of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). Saddlebrook must prove by a preponderance of the evidence that it has provided "reasonable assurances" that the proposed modifications to its surface water management system will comply with the provisions of Chapter 373, Florida Statutes, and applicable rules promulgated thereunder, and will not otherwise be harmful to the water resources of SWFWMD. See Section 373.413(1), Fla. Stat. (1991).

    
    

33. Under J.W.C. Co., Inc., 396 So. 2d at 789, if the regulatory agency gives notice of intent to grant the permit application, the applicant has the initial burden at a formal administrative hearing of going forward with the presentation of at least a prima facie case that such reasonable assurances have been given. Once a prima facie case is made, the burden of going forward can be shifted to the petitioner to present competent substantial evidence, consistent with the allegations of its petition, that the applicant is not entitled to the permit. Unless the petitioner presents "contrary evidence of equivalent quality" to that presented by the applicant, the permit must be approved.

    
    

    1. Compliance With Pertinent Permitting Criteria.

       
       

34. Saddlebrook's evidence met its initial burden of making a prima facie case that the proposed redesign of its surface water management system, as set forth in MSSW permit application 497318.00, will comply with all pertinent

    statutory and rule criteria of Chapter 373, Part IV, Florida Statutes, and Chapter 40D-4, Florida Administrative Code.

    
    

35. Wiregrass did not present "contrary evidence of equivalent quality" to that presented by Saddlebrook that Saddlebrook is not entitled to the permit.

    
    

36. Wiregrass also did not prove that Saddlebrook's proposed redesign will adversely impact Wiregrass.

    
    

    1. Annual Volume of Runoff.

       
       

37. F.A.C. Rule 40D-4.301 sets forth various general conditions for the issuance of MSSW permits. In claiming that SWFWMD should have considered annual volume of runoff, Wiregrass relies on one of these general conditions--namely,

    F.A.C. Rule 40D-4.301(1)(b), which provides that an applicant must give reasonable assurance that the surface water management system "will not cause adverse water . . . quantity impacts on receiving waters and adjacent lands."

    
    

38. The general conditions set forth in F.A.C. Rule 40D-4.301(1) are defined and given meaning by the design and performance criteria in SWFWMD's Basis of Review. F.A.C. Rule 40D-4.301(2) makes clear that the Basis of Review provides "the standards and criteria" which must be used in determining whether "the reasonable assurance required in Rule 40D-4.301(1)" have been provided. See also F.A.C. Rule 40D-4.091.

    
    

39. The Basis of Review makes clear that, for a project, like this one, located in an open drainage basin, an applicant provides reasonable assurance that the proposed system will not cause adverse water quantity impacts by demonstrating that the peak rate of discharge during a 25-year, 24-hour rainfall event under the proposed condition will be reasonably similar to the peak rate of discharge under the pre-development condition. Basis of Review at section 3.2.1.2(a) (p. B-17). The Basis of Review imposes no requirements with respect to the annual volume of runoff for such projects.

    
    

40. SWFWMD's determination not to regulate the annual volume of runoff in an open drainage basin is based on the provisions of Chapter 40D-4, including Rules 40D-4.301(2), 40D-4.091, and the Basis of Review. It has been applied consistently and is supported by competent substantial evidence.

    
    

41. Even if annual volume of runoff were relevant to SWFWMD's permitting decision, Saddlebrook has demonstrated that its proposed surface water management system will cause no adverse impact to Wiregrass as a result of annual volumes of runoff.

    
    

    1. Pre-Development Date.

       
       

42. SWFWMD only regulates "new" surface water management systems. F.A.C. Rule 40D-4.011(1). A "new" surface water management system is defined as one that was not in existence as of October 1, 1984. F.A.C. Rule 40D-4.021(6). The October 1, 1984, date is jurisdictional in the sense that SWFWMD has no jurisdiction to regulate a system in existence on that date. But, in this case, SWFWMD is not attempting to regulate a system that was in existence on October 1, 1984; it is regulating the proposed redesign of the "grandfathered" system. SWFWMD clearly has jurisdiction. See F.A.C. Rule 40D-4.054.

    
    

43. SWFWMD also utilizes the date October 1, 1984, to fix the "historic discharge" for redesign of a "grandfathered" system. See Basis of Review

    Sections 2.12 and 3.2.1.2. This use of the date October 1, 1984, in evaluating MSSW permit applications, is not jurisdictional. Rather, it reflects SWFWMD's policy choice in identifying the conditions against which a redesign will be compared if the system was legal as of that date.

    
    

44. SWFWMD's use of a 1973 pre-development date in its evaluation of Saddlebrook's discharges was appropriate in light of Wiregrass' express consent to the use of that date.

    
    

    1. Regulations Of Other Governmental Agencies.

    
    

45. F.A.C. Rule 40D-4 does not require that SWFWMD determine whether an MSSW permit application complies with the permitting or other regulations of other public agencies. Rather, the Basis of Review advises that an applicant must comply with "all other applicable laws" and that:

    
    

    Issuance of a Surface Water Management Permit by the District does not relieve the applicant

    of responsibility to obtain all necessary federal, state, local or special district permits or authorizations.

    
    

    Basis of Review sections 1.4, 1.5 (pp. B-4 through 5).

    
    

46. The standards with respect to the regulations of other agencies have been satisfied here. The proposed permit is expressly conditioned on Saddlebrook's compliance with the requirements of other public agencies. Limiting Condition No. 3 requires that:

    
    

    The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to

    the start of any construction or alteration of works authorized by this permit.

    Saddlebrook Ex. 3 at 15. In addition, Standard Condition No. 3 provides that: The issuance of this permit does not . . .

    authorize any . . . infringement of federal, state or local laws or regulations.

    
    

    Id. at 6, 17.

    
    

47. Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies," as provided in F.A.C. Rule 40D-4.301(1)(i) and the Basis of Review.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report.

RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 31st day of March, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated.

1. Rejected as not proven and contrary to the greater weight of the evidence.

2. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence.

1. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence.

2. Accepted but not necessary.

12.-13. Rejected as not proven and contrary to the greater weight of the evidence.

1. Accepted but not necessary.

2. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters.

3. Accepted but subordinate and unnecessary.

4. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it.

18.-20. Accepted but subordinate and unnecessary.

1. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary.

2. Accepted and incorporated.

3. Rejected as not proven and contrary to the greater weight of the evidence.

4. Rejected as not proven and contrary to the greater weight of the evidence.

5. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines.

26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion.

1. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence.

2. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant.

32.-34. Rejected as not proven and contrary to the greater weight of the evidence.

1. Accepted but subordinate and unnecessary.

2. Rejected as not proven and contrary to the greater weight of the evidence.

3. Accepted but subordinate and unnecessary.

4. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation.

Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding.

1. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application.

2. Accepted but subordinate and unnecessary.

3. Rejected as not proven and contrary to the greater weight of the evidence.

4. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence.

5. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges.

6. Rejected as not proven and contrary to the greater weight of the evidence.

7. Accepted but subordinate and unnecessary.

Respondents' Proposed Findings of Fact.

The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Douglas P. Manson, Esquire Foley & Lardner

101 East Kennedy Boulevard Suite 3650

Tampa, Florida 33602

Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis

1. East Randolph Drive Chicago, Illinois 60601

   
   

   Enola T. Brown, Esquire Lawson, McWhirter, Grandoff

   & Reeves

2. East Kennedy Boulevard Suite 800

Post Office Box 3350 Tampa, Florida 33601-3350

Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water

Management District 2379 Broad Street

Brooksville, Florida 34609-6899

Peter G. Hubbell Executive Director Southwest Florida Water

Management District 2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

ORDER NO. 92-30 OGC FILE NO. 04591

WIREGRASS RANCH, INC.

Petitioner,

vs. DOAH CASE NO. 91-3658

SADDLEBROOK RESORTS, INC., and SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,

Respondents.

/

ORDER CLOSING FILE

The Governing Board of the Southwest Florida Water Management District hereby acknowledges that on April 23, 1992, the District received from the Petitioner, Wiregrass Ranch, Inc., a Notice of Withdrawal or Voluntary Dismissal of Petition far Formal Administrative Hearing. This Notice of Withdrawal divests The District of jurisdiction to enter a final order in the above- styled matter and this file is hereby closed.

Approved by the Governing Board of the Southwest Florida Water Management Distrot, this 28th day of April, 1992, in Brooksville, Hernando county, Florida.

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

by

Charles A. Black, Chairman

Attest: Sally Thompson, Secretary

(Seal)

Docket for Case No: 91-003658

Orders for Case No: 91-003658