STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WORKMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-2184

) CHUCK EMLING and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding before P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings. Pursuant to notice a final hearing was conducted on January 15, 1999, in Pensacola, Florida.

APPEARANCES

For Petitioner: M. J. Menge, Esquire

Shell, Fleming, Davis & Menge, P.A. Seville Tower

Post Office Box 1831 Pensacola, Florida 32596

For Respondent Chuck Emling:

Alan B. Bookman, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596

For Respondent Department of Environmental Protection:

Ricardo Muratti, Esquire

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether a modification of a general permit should be issued by the Respondent agency Department of Environmental Protection (Department), to the Respondent, Chuck Emling, so as to allow construction and operation of a stormwater discharge facility on Emling's property in Gulf Breeze, Florida.

PRELIMINARY STATEMENT

The Respondent, Chuck Emling, owns a parcel of property in Santa Rosa County Florida, located along the southern right-of- way boundary of U.S. Highway 98. He is in the process of constructing a recreational center or "sports complex" to be known as the Gulf Breeze Sports Complex ("Club Property"). The property is bordered on the west by Crane Cove Boulevard and on the east by property owned by the Petitioner, John Workman and members of his family. Mr. Workman operates an automotive repair shop on the northern portion of his property and resides in a home on the southern portion of it.

On or about October 23, 1997, Mr. Emling applied for and was issued a general permit by the Department for the construction of a new stormwater discharge facility on the subject property.

Under prevailing law, specifically Rule 62-25.801, Florida Administrative Code, a general permit is automatically granted, without notice to any other persons or entities, for stormwater discharge facilities, as pertinent hereto, which have drainage

areas of less than 100 acres and which provide retention or detention, with filtration, of the first one-half inch of run- off. No notice of this application was sent to the Petitioner or adjoining property owners or published in the local newspaper because such is not legally required.

Mr. Emling desired to modify the design of his sports facility and the attendant stormwater discharge or management portion of the facility and thus filed an application for a modification of his general permit on or about March 12, 1998. This reflected substantial changes to the stormwater management plan previously filed with the Department. The retention areas, for instance, were reduced from some 301,787 cubic feet to approximately 97,110 cubic feet.

Upon receipt of the application for modification the Department provided the Petitioner with notice of the application. The Petitioner timely filed a Petition for Administrative Proceeding with the Department and on May 11, 1998, the Department requested assignment of an Administrative Law Judge to conduct all necessary proceedings. This proceeding and hearing ensued.

The Department presented the testimony of James Sherrouse, an engineer with the Department and presented six exhibits which were admitted into evidence at the hearing. The Respondent, Mr. Emling, presented the testimony of Jay Baynes, a civil engineer with the engineering firm providing professional engineering

assistance for Emling's project and presented one exhibit which was admitted into evidence. The Petitioner presented the testimony of John Broxson and Charles Merritt, who had observed the project property and the Workman property over a long period of time and were familiar with the natural flow of stormwaters over those properties. The Petitioner also testified and adduced the testimony of Leland Empie, a certified land surveyor who had performed surveying work for the Petitioner on a the subject properties and in the vicinity. The Petitioner also presented the testimony of Charles Meister, a civil engineer retained by the Petitioner to review the plans and calculations submitted by the applicant, as well as the testimony of Mr. Sherrouse the Department's engineer. The Petitioner presented eight exhibits which were admitted into evidence.

Upon the conclusion of the proceeding the parties requested that it be transcribed. They requested an opportunity to submit proposed recommended orders which have been timely submitted and considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Respondent Chuck Emling, intends to build a sports complex, herein known as the "Club Property." He obtained a general stormwater discharge facility permit therefor, since his property represents a drainage area of approximately 10 acres in size, well under the threshold of 100 acres or less by which a general permit may be granted and because he proposes to

   construct and operate the facility such as to retain the first one-half inch of run-off. Because his plans for the sports complex and attendant stormwater discharge facility changed he applied for a modification of that general permit, which was duly noticed by the Department and protested by the Petitioner herein. The Petitioner is concerned that overflow from the retention areas will be channeled onto his property and that the berm at the northeast corner of the project site will cause natural stormwater flow to be diverted onto Workman's property which formerly flowed across Mr. Emling's property. The Petitioner contends that a landowner, such as the applicant, may not construct a berm along the borders of his property to prevent surface waters that would otherwise naturally flow onto his property from doing so, under generally accepted principles of real property law.1

2. The Department is an agency of the State of Florida charged, as pertinent hereto, with authority to regulate stormwater discharge facility construction, design and operation, pursuant to the legal authority cited herein.

3. The proposed project is approximately ten acres in size and the project is expected to exceed all required standards for stormwater retention. The facility, as proposed in the modification application, will store approximately 18,254 cubic feet of run-off water and percolate it through its retention system within approximately seventy-two hours. The modified

   facility will store between 97,000 and 110,000 cubic feet of stormwater for percolation which is approximately five times greater than that required by regulations contained in Chapter 62-25, Florida Administrative Code, concerning storage of one- half inch of run-off, if the drainage area served by the stormwater facility is 100 acres or less. The subject project site is approximately 10 acres in size.

4. Prior to development of the Club Property, an "equalization pipe" ran under Crane Cove Boulevard providing for run-off of stormwater which was in excess of the amount that could be retained in the low-lying area immediately to the west of Crane Cove Boulevard and the Club Property. This was designed to allow such excess water to flow back onto the Club Property as well as to allow stormwater run-off on the Club Property to the east to reach the inlet of the equalization pipe to flow westward into the depressed area to the west of Crane Cove Boulevard. In other words, flow was permitted in both an easterly and westerly direction to equalize excess stormwater on both properties and to permit continuance of the historic east-to-west flow of stormwater over the land surface of the properties involved herein, after the installation of the obstacle consisting of Crane Cove Boulevard. Installation of the pipe and Crane Cove Boulevard occurred before the installation of the berms around the boundary of the applicant's property which are a part of the subject project.

5. The equalization pipe under Crane Cove Boulevard has now been connected to an extended pipe running under the Club Property all the way to the boundary of the Club Property which joins the Workman property. Some surface waters that historically and naturally flowed back onto the Club Property from the depressed area to the west of Crane Cove Boulevard, if that area flooded, and which are kept off the Club Property by the berms, can now pass through the equalization pipe without flowing onto or across the Club Property, which thus prevents the stormwater facility proposed to be installed from treating off- site stormwater. The pipe is supposedly sited and installed at an elevation so as to allow discharge off the Club Property only of stormwater in excess of the retention and treatment standard sub judice, which is that the facility will retain on-site all stormwater run-off resulting from less than a 100-year storm event.

6. Thus, for this reason, there is little likelihood that stormwater will be discharged onto the Workman property from this pipe from the Club Property and the applicant's proposed stormwater facility. It is also unlikely that stormwater will traverse the equalization pipe and its extension to the boundary of the Workman property from the west since, if the depressed area lying west of Crane Cove Boulevard floods, the stormwater collected there would more likely migrate westward since that is the direction of natural flow.

7. The Petitioner's case, on direct and through cross- examination, establishes two problems with the application for permit modification as proposed. First, the elevation of the weir on the eastern boundary of the Club Property, next to the Workman property, which allows water to be discharged through the pipe from the Club Property onto the Workman property, above a certain level, is purportedly at a lower level than the calculations provided by the applicant's engineers. Their calculations indicate what they believe is necessary to retain stormwater up to the volume of a

   100-year storm event before it can spill onto the Workman property. The Petition contends the calculations indicate that the weir would thus have to be at an elevation of 19 feet to retain stormwater to that level or volume, but the applicant's plans and evidence show variously that the weir would be either at 18.9 feet or at

   18.3 feet.

   
   

8. Additionally, the modification plan increases the size and configuration of the earthen berm around the northern end of the Club Property, moving it more toward the outer northern boundary along U.S. 98. The Petitioner demonstrated two problems with the size, configuration and location of the berm in this area of the property, that is the northern side of the Club Property in the area where it joins the northwest portion and boundary of the Workman property. First, the Department of

   Transportation (DOT) drain structure in the highway right-of-way of U.S. 98, at that point, is being subjected to siltation caused by unstabilized earth eroding off the berm and toward and into the drainage structure. This can cause downstream siltation pollution as well as actual physical blockage of all or part of the drainage capability of this structure. In addition to the possible pollution hazard posed by this situation it can also result in water ponding on the Workman property through impedance of proper drainage. Additionally, the configuration, size and location of the berm on the northeast corner and portion of the applicant's property may cause "backing up" or ponding of water on the Workman property. The erosion to the berm must be stabilized properly and the berm should be so located and configured near this northeast corner of the applicant's property and the northwest corner of the Workman property and other necessary steps taken so as to prevent the ponding of water onto the Workman property. A grant of the permit should be so conditioned.

9. The modification application proposes erosion control measures, including sod and landscaping, to enhance and preserve the stormwater system's integrity. During construction the project and site will be protected from soil erosion and sedimentation. Protective measures will include, as a minimum, installing staked hay bales and silt and sediment fencing downhill from any earth work activity, prior to the start of

   construction. The project specifications require all soil erosion and sedimentation to be controlled during construction and retained on-site. The stormwater collection and treatment system will require periodic maintenance for continued proper operation, including removal of silt and debris from infiltration areas and maintenance of vegetative cover. The grant of the permit should be conditioned on these steps being strictly followed, especially with regard to proper design and configuration of any berm and sod of it, so as to prevent erosion and resulting sedimentation into the DOT drainage and stormwater treatment system consisting of the culverts and swales along Highway 98. It is critical that those DOT structures and systems be maintained in proper operating condition and not impeded by construction and operation of the proposed project so as to prevent the ponding of water on the adjacent property owners' land.

10. The pre-development stormwater discharge rate for the project site, as shown in Appendix D to DEP Exhibit 3, was 6.55 cubic feet per second. The proposed project will retain all stormwater on-site with up to 100 percent of the volume caused by a "100-year storm." This means that the proposed 24-foot weir will be set at a minimum elevation of 18.3 feet, so that no stormwater will be discharged from the site until it reaches at least an elevation of 18.3 feet. It will discharge less than the predevelopment amount of stormwater after that point or once the

    surface water elevation in the retention system exceeds 18.3 feet. Thus the Club Property stormwater design will lessen the impact on all properties to the east of the development, and to the west as well, because all stormwater will be retained unless it exceeds the volume of 100 percent of a 100-year storm falling on the site area. Thus the pre-development discharge of 6.55 cubic feet per second will be entirely eliminated unless such a storm intensity and volume is reached. Even if the pond were to reach its maximum elevation, a discharge to the east towards Workman's property would only be 6.44 cubic feet per second or slightly under the pre-development discharge rate.

11. When the project is completed a "junction box" will be placed at the end of the mitered end section of the 18-inch pipe on the Club Property. The side discharge slot on that junction box will be set at an elevation of 18.3 feet. Therefore, no discharge from the Club site can flow toward Crane Cove Boulevard to the west unless a storm event in excess of a 100-year storm occurs, because only such an event would cause water to exceed that elevation. Thus, by not otherwise discharging from the site through the pipe the project will result in a lessening of any previous impacts on properties both west and east of the subject site from stormwater discharge.

12. The testimony of Mr. Leland Empie, a surveyor, testifying for the Petitioner, contains discussion of a purported wetlands area lying just west of the Club Property, across Crane

    Cove Boulevard and south of Highway 98. That wetlands area, if indeed it is a jurisdictional wetlands area, which was not definitively established, is only approximately one and one-half acres in size. Mr. Empie also postulated that there may be a wetlands area on the Club Property but that could not be definitively determined, as he admitted himself. He testified that he saw no definitive indication of jurisdictional wetlands on the project site and the area in question has been "cut and filled" so it is difficult to determine the fact of existence of any wetlands area on the Club Property. In any event, there has been no showing that the subject project will discharge stormwater to any wetland except possibly the wetland west of Crane Cove Boulevard, assuming that it qualifies as a jurisdictional wetland, which has not been proven. If that were the case, the discharge would only occur at a volume and level in the stormwater system which exceeds that of a 100-year storm. If such a discharge occurs it will still be, as found above, at a volume-per-day less than the historic run-off volume from the subject property in its predevelopment stage.

13. In summary, no preponderant definitive evidence was offered to prove that jurisdictional wetlands exist on the project site. The Petitioner's surveyor witness, Mr. Empie, relied on overlays of data from federal map sources to determine the purported location of wetlands on a map but could not verify the accuracy of the maps nor explain the difference in the manner

    in which jurisdictional wetlands are determined by the Northwest region of the Department versus the method used by the federal agencies referenced in his testimony.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. See Sections 120.569 and 120.57(1), Florida Statutes (1997).

15. If a development has the potential to discharge stormwater it is subject to regulation by the Department in accordance with Sections 403.061, and 403.814, Florida Statutes, as well as Chapter 62-25, of the Florida Administrative Code. Permitting jurisdiction over stormwater discharge facilities derives from Sections 403.161, and 403.814, Florida Statutes, and Rules 62-25.001, 62-25.801, and 62-4.530, Florida Administrative Code.

16. The applicant has the burden of proving that it is entitled to the modification of the general permit at issue in this proceeding. See Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The Respondent, Mr. Emling, has offered a preponderance of evidence, regarding the stormwater facility concerning its nature and scope so as to support the proposed modification. The Respondent has established that the project will meet all applicable stormwater discharge criteria.

17. Pursuant to Rule 62-25.801(1)(b), Florida Administrative Code, a general permit is granted to any person for the construction and operation of a stormwater discharge facility in a drainage area of less than 100 acres, which provides retention of the run-off from the first one-half inch of run-off. See also Rule 62-4.530(6), Florida Administrative Code. It is established that retention of the first one-half inch of run-off within 72 hours following the storm event in accordance with Rule 62-25.025, Florida Administrative Code, will occur.

18. Section 62-25.801, Florida Administrative Code, provides that a general permit is granted to any person for construction and operation of a new stormwater discharge facility which, in pertinent part, has a drainage area of less than 100 acres and provides retention, or detention with filtration of the first one-half inch of run-off. There is no question that this facility meets that standard. Consequently, it was entitled to the general permit, which it received upon a showing that such standard would be met, without having to comply with the other notice and permit requirements of Chapter 62-25, Florida Administrative Code. The Department deemed the filing of the modification application a substantial enough modification, that it required notice in accordance with prevailing law and an opportunity for a point-of-entry for persons situated as the Petitioner.

19. The Petitioner cites Rule 62-25.040, Florida Administrative Code, containing the construction permit requirements for stormwater discharge facilities, referencing the "public interest" to be served by the discharge as one standard applicable to this case and the other standard concerning whether "best management practices" are proposed to be followed. The preponderant evidence of the record shows that best management engineering and other practices will be followed in the construction and operation of the project, provided that the above-referenced condition concerning siltation and erosion of the bermed areas is monitored and attended to promptly and on a regular basis. Siltation of DOT's storage and drainage structures can cause Mr. Workman's fear of back-up of stormwaters onto his property to be realized. Such an eventuality would also violate the "public interest standard" in the above-cited rule. The preponderant evidence shows at this point, however, that the overall operation of the project, as now designed and proven at hearing, will result in a net public interest benefit, because less stormwater will be discharged on adjoining properties than was formerly the case in the pre-development stage from the subject project site. In fact, even if a 100-year storm event occurs and the weir begins to discharge water off-site, an unlikely event, the discharge will still be less than the normal expected discharge volume from the Club Property in its former pre-development stage. Thus, overall, the preponderant proof in

this case shows that the public interest will be positively served by installation of the subject project provided it is monitored in its construction phase and in its operation phase on a regular basis to ensure that sedimentation, siltation, vegetation cover and berm location and configuration are properly maintained, controlled and executed as the case may be.

1. Moreover, and aside from the permitting standards in that rule, it is provided in Rule 62-25.030, Florida Administrative Code, "Exemptions," that new stormwater discharge facilities are exempt from the notice and permit requirements of Chapter 62-25, Florida Administrative Code, if they provide retention or detention with filtration of the run-off from the first one-half inch of stormwater if their drainage areas are less than 100 acres. This circumstance describes the subject project and therefore, in accordance with Rule 62-25.030(2)(b), Florida Administrative Code, this project would appear to be exempt from the construction permit requirements, aside from the fact that under Rule 62-25.801, Florida Administrative Code, it clearly qualifies for the underlying general permit, which is not subjected to the notice requirements either. Thus it would appear that, from a strictly legal standpoint, the public interest standard and the best management practices standard, and any of the other construction permitting standards do not apply to this project.

2. Thus, the Respondent has established entitlement to the permit modification requested.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is

RECOMMENDED:

That a final order be issued by the Department of Environmental Protection approving the requested modification of the Respondent-Applicant's stormwater discharge general permit in the manner recommended and conditioned herein.

DONE AND ENTERED this 10th day of May, 1999, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1999.

ENDNOTE

1/ This proceeding may only encompass issues concerning whether the statutes and agency rules governing stormwater facility permitting, construction and operation are complied with. Aside

from matters involving the concept of the "Public Interest," dealt with in the Conclusions of Law below, it is the opinion of the undersigned that any issues concerning "nuisance" or other theory regarding such interference with the enjoyment of the Petitioner's property rights are properly raised in the Circuit Court.

COPIES FURNISHED:

M. J. Menge, Esquire

Shell, Fleming, Davis & Menge, P.A. Seville Tower

Post Office Box 1831 Pensacola, Florida 32596

Alan Bookman, Esquire Emmanuel, Shepard & Condon Post Office Drawer 1271 Pensacola, Florida 32596

Ricardo Muratti, Esquire Department of Environmental

Protection

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk Office of General Counsel

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Office of General Counsel

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002184

Orders for Case No: 98-002184