STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROYAL PALM BEACH COLONY, L.P., )

)

Petitioner, )

)

vs. ) Case No. 98-2375

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent, )

)

and )

) 1000 FRIENDS OF FLORIDA, INC., ) and INDIAN TRAIL IMPROVEMENT ) DISTRICTS, )

)

Intervenors. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 20-22, and November 9 and 10, 1998, at West Palm Beach, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alfred J. Malefatto, Esquire

Theresa Moore, Esquire Greenberg, Traurig, Hoffman,

Lipoff & Quentel, P.A.

Phillips Point East Tower, Suite 310 777 South Flagler Drive

West Palm Beach, Florida 33401

For Respondent: Douglas MacLaughlin, Esquire

Marcy I. LaHart, Esquire

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406 For Intervenor 1000 Friends of Florida:

Terrel Arline, Esquire Post Office Box 5948

Tallahassee, Florida 32314-5948 For Intervenor Indian Trail Improvement District:

Charles Schoech, Esquire Caldwell & Pacetti

324 Royal Palm Way, Suite 300 Palm Beach, Florida 33480

STATEMENT OF THE ISSUES

Whether Petitioner should be granted No Notice General Environmental Resource Permits for Lots 61, 245, and 247 within Unit of Development 11 of the Indian Trail Improvement District, pursuant to permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapters 40E-40 and 40E-400, Florida Administrative Code, and the South Florida Water Management District's "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District--November 1996."

PRELIMINARY STATEMENT

By a Petition for Formal Administrative Hearing filed with the Respondent, South Florida Water Management District (SFWMD), on April 23, 1998, Petitioner, Royal Palm Beach Colony (Royal Palm), challenged SFWMD's determination that the

criteria for No Notice General Permits (NNGP) had not been satisfied for Royal Palm's three lots in Unit of Development

11 of the Indian Trail Improvement District (ITID). By order dated May 20, 1998, SFWMD forwarded the case to the Division of Administrative Hearings for assignment to an administrative law judge.

ITID filed a Petition for Leave to Intervene on August 6, 1998, and 1000 Friends of Florida, Inc. filed a Petition for Leave to Intervene on July 30, 1998. The petitions were granted by Order dated August 18, 1998.

On September 22, 1998, Royal Palm filed a Rule Challenge Petition, questioning the validity of Rules 40E-400.315(1)(f) and 40E-4.301(1)(f), Florida Administrative Code. The rule challenge and the permit case were consolidated for final hearing by Order dated October 8, 1998.

The consolidated case was scheduled for final hearing on August 24-26, 1998. Respondent filed a motion for continuance, which was granted, and the final hearing was rescheduled for October 20-22 and November 9-10, 1998.

At the final hearing, Royal Palm presented the testimony of the following witnesses: Randy Rieger, K. Daniel Shalloway, Joesph A. Pike, James M. Hudgens, J. Bradley Melko, Jay Foy, and Sam B. Upchurch. Petitioner's Exhibits 1-68 were admitted in evidence.

SFWMD presented the testimony of the following witnesses: Terrie Bates, Robert Robbins, Anthony Waterhouse, Richard Orth, and Robert Mitchell. Respondent's Exhibits 1-28 were admitted in evidence.

Intervenor, 1000 Friends of Florida's, Exhibits 1-3 were admitted in evidence. Joint Exhibits 1-4 were submitted in evidence.

Official recognition was taken of Chapters 40E-4 and 40E.400, Florida Administrative Code, the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District--November 1996," and

Chapter 373, Part IV, Florida Statutes.

The parties were to file their proposed orders within thirty days of the filing of the transcript. The transcript was filed on November 23, 1998. Royal Palm requested and was granted two extensions of time to file the proposed orders.

SFWMD requested an additional extension for filing the orders to January 19, 1999. The parties' proposed orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Royal Palm Beach Colony (Royal Palm), is a limited partnership registered and authorized to do business in the State of Florida.

2. Respondent, South Florida Water Management District

   (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a water management district, with its principal office in West Palm Beach, Florida.

3. Intervenor, 1000 Friends of Florida, Inc., is a not- for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida.

4. Intervenor, Indian Trail Improvement District (ITID), is a special district of the State of Florida established by special act of the Legislature, Chapter 57-646, Laws of Florida, and operating pursuant to applicable provisions of Chapter 298, Florida Statutes, as well as special acts of the Legislature.

5. Royal Palm owns approximately 171 lots within Unit of Development 11 of ITID (Unit 11) in Palm Beach County, Florida. Each lot is approximately 1.25 acres. Not all of the lots owned by Royal Palm in Unit 11 are contiguous. Unit

   11 is a rural subdivision within ITID, in which there are numerous private property owners. The property of Royal Palm that is the subject of dispute is comprised of three lots, Lots 61, 245, and 247.

6. Unit 11 is within the C-18 Basin. Prior to the construction of the C-18 Canal, the area was typically drained

   by sheet flow to the north. Because of the flat topography, the drainage in the C-18 Basin is poor; therefore, following periods of heavy rainfall much of the land is inundated. Unit

   11 contains an extensive amount of wetlands.

   
   

7. There are currently no habitable structures within Unit 11. It consists of vacant lots with an interconnected network of roads, canals, and roadside swales.

8. On August 15, 1975, SFWMD's predecessor, The Central and Southern Florida Flood Control District, issued ITID a surface water management permit, Permit No. 50-00136-S (the 1975 permit) for construction and operation of a surface water management system serving Unit 11. The permit authorizes discharge from Unit 11 to the west leg of the C-18 canal via three culverts.

9. In 1988, SFWMD undertook a comprehensive examination of the C-18 Basin, which resulted in a publication entitled "Technical Publication 88-11, Flood Management Study of the C-

   18 Basin, August, 1988." The study documented that the western leg of the C-18 canal lacked capacity to accept the permitted discharge from Unit 11. SFWMD determined that the development of Unit 11's flood control and water quantity management system according to Permit No. 50-00136-S would be inconsistent with the overall objectives of SFWMD, harmful to the water resources and the public's health, safety, and

   welfare, and to the policies and purposes of Chapter 373, Florida Statutes, and not in the best interest of future residents of Unit 11.

10. SFWMD and ITID entered into a consent agreement concerning Unit 11 on July 7, 1989 (the Consent Agreement). SFWMD and ITID agreed that ITID would apply for, process, and obtain a modification of Permit No. 50-00136-S to address and resolve SFWMD's flooding and water quality concerns. In addition, ITID was to construct the surface water management system authorized in the permit modification in accordance with the terms of the permit.

11. ITID received a permit from SFWMD in 1990 authorizing modifications to the surface water management system in order to address the issues identified in the Consent Agreement, namely potential flooding of homes constructed for future residents of Unit 11. The improvements approved in the 1990 permit were never implemented, and the permit expired.

12. In 1992, ITID proposed a different modification to the surface water management system that proposed an impoundment for retention of stormwater. The permit application was recommended for denial by SFWMD staff, but has never been presented to the SFWMD Governing Board for final agency action.

13. The problems regarding the water quality and flooding problems set forth in the Consent Agreement have not been remedied.

14. On December 4, 1997, Royal Palm obtained variances from the Palm Beach County Health Department (the Health Department), granting Royal Palm the right under certain specified conditions to construct on-site sewage treatment and disposal systems (OSTD Systems) on Lots 61, 245, and 247.

15. Originally, the Health Department had denied Royal Palm's request for permission to construct the OSTD Systems on lots 61, 245, and 247 on the grounds that the lots were located in an area subject to frequent flooding and the drainage in the subdivision had not been constructed in accordance with SFWMD's requirements.

16. Subsequent to the granting of the variance, Royal Palm revised its site plans for the three lots, and those revised plans have not been reviewed by the Health Department for compliance with applicable rules.

17. On March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to a No Notice General Permit (NNGP) for Lots 61, 245, and 247 for activities in uplands pursuant to Rule 40E-400.315, Florida Administrative Code.

18. On April 9, 1998, SFWMD issued its agency action by letter that informed Royal Palm that SFWMD staff had

    determined that the three lots did not qualify for a NNGP.

    
    

19. The letter stated the reasons for denial as follows:

    
    

    Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E- 400.315(1)(f), Fla. Admin. Code. Royal Palm Colony is the owner of approximately

    170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development.

    Reasonable assurances have not been provided to show that construction and/or operation of the proposed system with use of septic systems and the associated lack of water quality treatment will not cause pollution in violation of water quality standards. See Rule 40E-4.301(1)(e), and 40E-400.215(11), Fla. Admin. Code. There is not a viable or functioning stormwater management system in place or proposed to provide reasonable assurance that the septic systems would properly function.

    Reasonable assurances have not been

    provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-400.301(1)(f), Fla. Admin. Code.

    Reasonable assurances have not been

    provided to show that construction and/or operation of the proposed system will not cause water quality impacts to receiving waters and adjacent lands. See Rule 40E- 4.301(1)(a), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development.

    Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not cause adverse flooding to on-site and or/or (sic) off-site properties. See Rule 40E- 4.301(10)(b), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development.

    Reasonable assurances have not been

    provided to show that construction and/or operation of the proposed system will not cause adverse impacts to existing surface water storage and conveyance capabilities. See Rule 40E-4.301(10)(c), Fla. Admin.

    Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development.

    Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not adversely impact the value of functions provided to fish and wildlife and listed species and other surface waters. See Rule 40-4.301(1)(d), Fla. Admin. Code. This consideration is especially relevant when considering the larger common plan of development.

    Reasonable assurance has not been

    provided to show that the proposed system or project is capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed. See Rule 40E- 4.301(1)(i), Fla. Admin. Code.

    
    

20. On April 23, 1998, Royal Palm filed its Petition for Formal Administrative Hearing with the clerk of SFWMD, initiating this proceeding.

21. Rule 40E-400.315(1)(f), Florida Administrative Code,

    is intended to authorize only very minor activities that have no potential to cause harm to water resources. Because the NNGP is issued by rule, SFWMD does not typically review projects that are conducted pursuant to a NNGP. A NNGP does not authorize projects that are part of a common plan of development or sale.

22. In determining whether an activity is within a larger common plan of development, SFWMD staff look to see whether the project has shared infrastructure that facilitates development, such as canals, swales, and roads.

23. A surface water management is in place in Unit 11.

    
    

    It consists of roads, swales, and drainage canals. The system drains to the C-18 canal via three culverts. The system was put into place as a result of the issuance of the 1975 permit, but there have been no modifications to the system as required by the Consent Agreement. During the last ten years ITID has done minimal maintenance to the system.

24. A common road network within Unit 11 provides access to each of the three lots. The lots will depend on the swales and drainage canals as part of overall stormwater management system that serves Unit 11.

25. Unit 11 is a common plan of development.

    
    

    Accordingly, the activities proposed by Royal Palm, filling in order to construct three single family houses with driveways,

    mounded septic tank systems, and wells within Unit 11 are not authorized pursuant to a NNGP.

26. Royal Palm's predecessor company originally owned all the lots in Unit 11. Royal Palm is presently liquidating its assets. Royal Palm selected the three lots at issue in this case for permitting for individual homes because the lots represented a good overview of the different types of Royal Palm's holdings in the area. If Royal Palm is able to build homes on the three lots and depending on the market conditions and other outside factors, Royal Palm will make a decision on how to liquidate the other 168 lots in Unit 11.

27. It is anticipated that the construction of the homes on the lots at issue will involve placement of fill. Land development, including the placement of fill, displaces stormwater that would, on a property in its natural condition, pond on the surface or soak into the ground. In order to determine whether a project complies with the flood protection criteria, SFWMD staff must consider the effect the proposed land development has off-site, and the effects surrounding lands may have on the lot to be developed.

28. The flood routing calculations provided by Royal Palm in its application did not provide any analysis of how discharges from surrounding properties would affect the performance of the surface water management systems

    constructed on the lots at issue. Nor did Royal Palm address the potential for flooding of off-site properties by stormwater displaced by fill and impervious areas that are contemplated on Lots 61, 245, and 247. The three lots are not hydrologically separate from the remainder of Unit 11.

29. Royal Palm's failure to include a detailed analysis of the surrounding area also precluded SFWMD from making a determination as to the impacts of the proposed activities upon existing surface water storage and conveyance capabilities.

30. The proposed projects are single family houses. It is reasonable to expect that some discharge of untreated stormwater runoff from the system directly into wetlands and other surface water will occur. For Lots 245, 247, and 61, the proposed stormwater management system includes a dry detention area. Considering the topographic information for this site, part of the runoff from the fill area will not flow into the dry detention area but will flow untreated directly into wetlands and other surface waters. The runoff could reasonably be expected to include oils, grease, and petroleum from the driveway area and herbicide and pesticides from the yard area. The untreated runoff could pose an adverse impact.

31. Development adjacent to wetlands has the potential to disrupt the usage of those wetlands by wildlife. Section

    4.2.7 of the Basis of Review provides that secondary impacts to the habitat functions of wetlands associated with adjacent upland activities are not considered adverse if buffers with a minimum width of 15 feet and an average width of 25 feet are provided abutting those wetlands. In certain circumstances, additional measures are necessary. The Basis of Review provides that buffers must be in undisturbed condition, except that drainage features can be located in the buffer if their construction and operation will not negatively impact the wetlands. The design drawings for Lots 245 and 247 demonstrate that the buffers are not undisturbed because fill will be placed in the buffer areas.

32. There is no treatment system in place for the roads in Unit 11; thus, there is a potential for untreated runoff from the roads, which could contain oils, grease, and petroleum constituents, to reach wetlands or surface waters. The roads in Unit 11 are sometimes under water and will require increased maintenance to correct erosion from increased vehicular traffic. Road maintenance and grading present the potential to discharge sediment laden water into adjacent wetlands. This threat is particularly great in Unit

    11 because many of the roads go directly through wetlands.

33. The engineering calculations submitted by Royal Palm anticipate that the elevation of the roads will be raised. Raising the elevations will require additional fill, and because several roads in Unit 11 go through wetlands, additional filling of wetlands can be anticipated.

34. Section 6.9(a) of the Basis of Review, requires that residential projects must have the calculated ability to discharge a sufficient volume of stormwater such that the system can return to the control elevation within 12 days of a design storm event. Royal Palm failed to provide information demonstrating that the storage volume provided by the systems proposed for the three lots can be recovered and therefore available for subsequent storm events. Without an adequate understanding of the functioning of the overall surface stormwater management system in Unit 11, it is impossible to determine the amount of time necessary for the systems on the three lots to bleed down to control elevation.

35. In order to allow access to the three lots from the roads, fill must be placed in the roadside swales. Because the elevation of the roadside swales is below the seasonal high water table, they are defined as other surface waters. The swales are depressional areas that support an abundance of obligate wetland vegetation; thus, they are encompassed within

    the definition of jurisdictional wetlands. Thus, the project will involve direct impacts to wetlands.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

37. The applicant has the burden to establish that it is entitled to the permit. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

38. Rule 40E-400.315, Florida Administrative Code, sets forth the requirements for a NNGP and provides:

    1. A no-notice general permit is hereby granted for the construction or alteration of minor systems located entirely within uplands, provided that the proposed system meets all of the following criteria:

       1. the total project area is less than 10 acres;

       2. the total project involves less than 2 acres of impervious surface;

       3. no activities will impact wetlands or other surface waters:

       4. no activities are conducted in, on or over wetlands or other surface waters;

       5. drainage facilities shall not include pipes with diameters greater than

          24 inches or the hydraulic equivalent and shall not utilize pumps in any manner;

       6. the project is not part of a larger common plan of development or sale.

    2. A no-notice general permit is hereby granted for the construction or alteration of surface water management systems, provided that the surface water management system meets all the conditions

       of the subsection (a), below, and all thresholds and conditions of at least one of the subsections (b), (c), or (d), below.

       (a) General Conditions

       1. The surface water management system design plans must be signed and sealed by a Florida Registered Professional Engineer, if required by Chapter 471, F.S.

       2. The surface water management system must meet the criteria specified in Rule 40E-4.301, F.A.C., and applicable local requirements.

       3. Except as allowed for in Rule 40E- 40.041(7), F.A.C., the project must not be located in natural water bodies, visible wetlands habitat, waters of the state, or a Florida Outstanding Water as listed in Rule 62-302.700, F.A.C.

       4. The permittee must have obtained a works of the District permit pursuant to Chapter 40E-6, F.A.C., if the project proposed to connect with, place structures in or across or otherwise make use of works of the District.

       
       

       * * *

       
       

       (c) Thresholds and Additional Conditions Within Palm Beach County

       1. The project must have less than 40 acres total land area.

       2. The project and surface water management system must have been approved by Palm Beach County subsequent to October 2, 1977.

       
       

39. Royal Palm's applications for Lots 61, 245, and 247 do not qualify for a NNGP because the lots are part of a larger common plan of development, which is Unit 11. ITID was issued a permit in 1975 for a surface water management system in Unit 11. The lots in question are in Unit 11. Lots 61, 245, and 247, share a common infrastructure, including an

    interconnected network of roads, swales, and canals. Subsequent to the issuance of the 1975 permit, SFWMD determined that the permitted surface water management system would result in extensive flooding and was harmful to the water resources and public health, safety, and welfare. SFWMD and ITID entered into a consent agreement in which ITID agreed to get a permit for modifications to the system and to implement the modifications to address the concerns of flooding and water quality. Those modifications were never made; thus the surface water management system which is in place in Unit 11 is not adequate.

40. Additionally, Royal Palm plans to dispose of its remaining property in Unit 11. The application was submitted as a way of testing the waters to see if single family houses would be permittable on the lots. One of the possibilities for the liquidation of Royal Palm's Unit 11 property would be to market the properties as suitable for single family residences. Such a plan would qualify as a common plan of sale and would be contrary to Rule 40E-400.315(1)(f), Florida Administrative Code.

41. Rules 40E-4.301(1)(e) and 40E-400.215(11), Florida

Administrative Code requires that in order for a permit to be issued that the applicant must provide reasonable assurances that the proposed activities will not violate water quality

standards. Royal Palm failed to provide reasonable assurances that the septic tank systems would properly function and not cause pollution in violation of water quality standards. The plans which Royal Palm submitted to the Department of Health have been revised since the variance was granted. The plans on which Royal Palm bases its application for a NNGP have not been reviewed and approved by the Department of Health.

1. Rule 40E-4.301(1)(f), Florida Administrative Code, requires that the applicant must provide reasonable assurances that the proposed project will not cause adverse secondary impacts to water resources. Royal Palm has failed to provide such assurances. The buffers for two of the lots contain fill and are not undisturbed. There is no treatment system in place for the roads, which could result in untreated runoff from the roads reaching wetlands or surface waters. The roads are often flooded, which will result in increased maintenance to correct erosion which in turn presents the potential for discharge of sediment laden water into adjacent wetlands. These impacts are adverse to the water resources.

2. Rule 40E-4.301(1)(a)-(c), Florida Administrative Code, provides that an applicant shall provide reasonable assurances that the proposed activities:

   1. will not cause adverse water quantity impacts to receiving waters and adjacent lands;

   2. will not cause adverse flooding to on-

      site or off-site property;

   3. will not cause adverse impacts to existing surface water storage and conveyance capabilities;

      
      

3. Royal Palm failed to provide any analysis of how the operation of the existing surface water management system in Unit 11 will affect the systems proposed to be constructed on the three lots or how stormwater and fill displaced by the fill and impervious areas on the lots will affect off-site property. Nor has Royal Palm provided an analysis of how runoff from adjacent lots will affect the surface water management system it proposes to construct. Thus, Royal Palm has failed to provide reasonable assurances that the construction of single family residences on the three lots will meet the criteria in Rule 40E-301.(1)(a)-(c), Florida Administrative Code.

4. Rule 4.301(1)(d), Florida Administrative Code, provides that the applicant shall provide reasonable assurances that the proposed system will not adversely impact the value of functions of provided to fish and wildlife and listed species and other surface waters. The lots will require driveways to be put over the roadside swales. Royal has not provided adequate assurances that the placement of the fill in the roadside swales will not violate Rule 4.301(1)(d), Florida Administrative Code.

5. Rule 40E-4.301(1)(i), Florida Administrative Code,

provides that the applicant must provide reasonable assurances that the proposed system is capable, based on generally accepted engineering and scientific principles of functioning as proposed. Royal Palm has not demonstrated that the proposed surface water management system is capable of discharging water from the dry detention areas rapidly enough to provide adequate storage capacity for subsequent storm events. Royal Palm has failed to meet the requirement of Rule 40E-4.301(1)(i), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Royal Palm Beach Colony, L.P.'s application for No Notice General Permits for Lots 61, 245, and 237.

DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida.

___________________________________ SUSAN B. KIRKLAND

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1999.

COPIES FURNISHED:

Samuel H. Poole, III, Executive Director South Florida Water

Management District 3301 Gun Club Road

West Palm Beach, Florida 33406

Douglas H. MacLaughlin, Esquire South Florida Water

Management District 3301 Gun Club Road

West Palm Beach, Florida 33406

Alfred J. Malefatto, Esquire Teresa J. Moore, Esquire Greenberg, Traurig, Hoffman,

Lipoff, Rosen & Quentel, P.A.

777 South Flagler Drive Suite 300 East

West Palm Beach, Florida 33401

Terrell K. Arline, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, Florida 32301

Charles F. Schoesch, Esquire Caldwell & Pacetti

234 Royal Palm Way, Suite 300 Palm Beach, Florida 33480

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: 98-002375

Orders for Case No: 98-002375