STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LAKE REGION AUDUBON SOCIETY,
Petitioner,
vs.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT and SPANISH OAKS OF CENTRAL FLORIDA L.L.C.,
Respondents.
)
)
)
)
) Case No. 05-2606
)
)
)
)
)
)
)
)
RECOMMENDED ORDER
On September 22-23, 2005, a final administrative hearing was held in this case in Bartow, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Paul Anderson, Qualified Representative
Lake Region Audubon Society
115 Lameraux Road
Winter Haven, Florida 33884 For Southwest Florida Water Management District:
Martha A. Moore, Esquire Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
For Spanish Oaks of Central Florida L.L.C.:
Martha Harrell Chumbler, Esquire Carlton Fields, P.A.
Post Office Drawer 190
215 South Monroe Street, Suite 500 Tallahassee, Florida 32302-0190
Benjamin W. Hardin, Jr., Esquire Hardin & Associates, P.A.
Post Office Box 3604 Lakeland, Florida 33802-3604
STATEMENT OF THE ISSUES
The issues in this case are: whether the Petitioner, Lake Region Audubon Society (LRAS), a not-for-profit corporation, has filed a petition challenging the issuance of Environmental Resource Permit (ERP) No. 44025789.001 to Spanish Oaks of Central Florida, L.C.C. (Spanish Oaks); whether LRAS has standing to challenge the ERP; whether the Southwest Florida Water Management District (District, or SWFWMD) should issue the ERP to Spanish Oaks; and whether Spanish Oaks should be awarded attorney's fees and costs.
PRELIMINARY STATEMENT
SWFWMD issued ERP No. 44025789.001 to Spanish Oaks on April 27, 2004. However, SWFWMD rules did not require publication of notice of the right of all persons whose substantial interests would be affected by the ERP to initiate an administrative proceeding to challenge the ERP before it would become final. Instead, as provided by SWFWMD rules,
Spanish Oaks was given the option to publish such a notice, which it initially did not do. Later, Spanish Oaks decided to publish such a notice and did so on May 19, 2005. On June 6, 2005, LRAS filed a Petition for Administrative Proceeding (Petition), which SWFWMD dismissed without prejudice. On
July 11, 2005, LRAS filed an Amended Petition,1 which SWFWMD referred to DOAH, where it was given DOAH Case No. 05-2606 and scheduled for final hearing.
By letter filed June 27, 2005, LRAS requested that the ALJ enter an order requiring a halt to all work on Spanish Oaks. This request was denied for lack of jurisdiction to give injunctive relief in an enforcement matter. On July 22, 2005, unbeknownst to the ALJ, and notwithstanding Section 120.569(2)(a), Florida Statutes,2 SWFWMD approved the transfer of the ERP to the operation phase, with responsibility for future operation and maintenance transferred to the Spanish Oaks of Central Florida Homeowners Association.
On September 7, 2005, Spanish Oaks filed a Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes.
Immediately before the start of the final hearing, SWFWMD filed a Motion in Limine, and Spanish Oaks filed both a Motion in Limine, which was denied, and a Motion for Summary Recommended Order. Ruling on the pending motions was
deferred, and the parties were given seven days from the end of the final hearing to file responses.
At the outset of the final hearing, Joint Exhibit 1, consisting of the bates-stamped application file, was admitted in evidence. Then, the rest of the parties' evidence was presented.
LRAS called 18 witnesses: Mark Hurst, an expert geologist and hydrogeologist; Donna Stark, an LRAS member; Timothy King, a biologist with the Florida Fish and Wildlife Commission; Kathleen O'Connor; George Wilt; Charles Cook, an environmental specialist with the Florida Department of Environmental Protection (DEP), Bureau of Mine Reclamation;
Custred, a retired mine engineer; Tom Jackson, a geologist with SWFWMD; Sherry Windsor, a SWFWMD staff engineer; Brian Starford, a geologist and Director of SWFWMD's Bartow Water District; William Hockensmith, Spanish Oaks' consulting professional engineer of record; John McVay, another Spanish Oaks' consulting professional engineer; Jeff Whealton, a SWFWMD staff environmental scientist; Frank Ritchie, a SWFWMD staff civil engineer; David Carpenter, a staff Environmental Regulation manager for SWFWMD; William Hartmann, a professional engineer and SWFWMD's Surface Water Regulation Manager; Dennis Morgan, principal of the construction contractor for site work for Spanish Oaks; and
Laura Howe, a SWFWMD Senior Field Technician. LRAS also had its Exhibits 1, 2, 5, 6, and 7 admitted in evidence.
Spanish Oaks called four witnesses: Sonny Gulati, a professional engineer and an expert in sinkhole investigations; Donna Stark; John A. Ryan, who is active with Sierra Club and assisted Anderson in his representation of LRAS; and Robert Harper, principal of Spanish Oaks. Spanish Oaks also had its Exhibits 1-14 admitted in evidence.
SWFWMD called Anthony Gilboy, a SWFWMD well construction regulation manager, and recalled William Hartmann. SWFWMD also had its Exhibits 1-2 admitted in evidence.
After presentation of evidence, a transcript of the final hearing was requested, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs).
On September 30, 2005, SWFWMD filed a Joinder in Spanish Oaks' Motion for Summary Recommended Order, and LRAS filed responses in opposition to Spanish Oaks' Motion for Summary Recommended Order and SWFWMD's Motion in Limine.
The two-volume Transcript was filed on October 11, 2005, making PROs due October 21, 2005. The parties timely filed PROs, which have been considered.
On October 18, 2005, the pending motions were denied as moot; however, it was ruled that the merits of the factual and
legal issues raised in the Motion for Summary Recommended Order remained, and the parties' filings on it have been considered, along with the timely-filed PROs.
LRAS' PRO included a request that the ALJ enter a final order instead of a recommended order. On October 24, 2005, Spanish Oaks filed a Response [in opposition] to Motion for Final Order. As indicated by the entry of this Recommended Order, for the reasons given in the Response in opposition, LRAS' request that the ALJ enter a final order is denied.
Finally, Spanish Oaks' PRO suggests that jurisdiction to rule on its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, should be retained.
FINDINGS OF FACT
Application and ERP
On or about January 23, 2004, Spanish Oaks submitted to SWFWMD an application for an ERP to construct a surface water management system (the System) to serve a 30.878-acre, 47-lot single-family residential development in the vicinity of Lakeland, Polk County, Florida. SWFWMD requested additional information on February 20, 2004, to which Spanish Oaks responded on or about February 27, 2004. The application was deemed complete on March 26, 2004. On April 27, 2004, SWFWMD issued the Spanish Oaks ERP.
The Spanish Oaks ERP describes the System as follows:
The proposed surface water management system includes storm drains with associated piping and three interconnected retention ponds (Pond A, Pond B, and Pond C). The system is designed to accommodate the runoff from the activities associated with the construction of the 47-lot subdivision with paved roads. The project site is located on the south side of State Road 33, just east of Lake Luther Road in Polk County.
The project is located within a hydrologically closed drainage basin. The consultant utilized a design storm based on a 100-year, 24-hour rainfall event of 10.0 inches. The ponds are designed to retain the post-development runoff volume for the 100-year, 24-hour rainfall event without surface discharge. Project runoff will be conveyed to the proposed retention ponds. .
. . No adverse off-site/on-site water quantity impacts are expected.
Compliance with Chapter 40D-4, F.A.C., water quality requirements is assured; the retention ponds will treat the first one- half inch of runoff from the contributing drainage area and recover this volume through natural infiltration within 72 hours. This is consistent with Part B, Environmental Resource Permitting Information Manual Section 5.2(c). No adverse on-site/off-site water quality impacts are expected.
There is 0.11 acre of herbaceous wetlands
within the project area. Permanent wetland impacts are proposed to the 0.11 acre herbaceous wetland. No mitigation is required for this impact.
LRAS' Amended Petition
On June 6, 2005, LRAS filed a Petition signed by Paul Anderson, Mae Hartsaw, Carrie Plair, and Chuck Geanangel.
SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, since identified as Donna Stark, on May 10, 2005.
The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair. The District determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition.
The Amended Petition alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; and Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction.3
The Amended Petition asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended
Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (since identified as Timothy King),
observed a "very large cone-shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.”
The Amended Petition also asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site that the retention ponds were 30 feet deep.”
As to any specific rules or statutes requiring reversal or modification of the proposed agency action, LRAS’ Amended Petition asserted that the Spanish Oaks development violates Chapter 62, Florida Administrative Code,4 which, LRAS contends, disallows the use of a sinkhole to discharge contaminated water, citing Rule 62-522.300(1) and (3). See Conclusion 90, infra.
Standing
LRAS did not allege or present any evidence to prove that the substantial interests of a substantial number of its members would be affected by issuance of the ERP to Spanish
Oaks. The Amended Petition alleged that, if LRAS failed to oppose the ERP, it would not "fulfill it's [sic] objectives and hence adversely affect the corporation and disappoint it's [sic] membership." But LRAS did not present any evidence at the final hearing to prove that its own substantial interests would be affected by the ERP.
LRAS alleged that it has standing under Section 403.412(6), Florida Statutes. See Conclusions 74, infra. LRAS was formed as a Florida not-for-profit corporation in 1962. The evidence was sufficient to prove that LRAS has at least 25 current members residing in Polk County, where Spanish Oaks' ERP is proposed. Not only was there testimony in the depositions introduced into evidence as Spanish Oaks Exhibits 1, 2 and 3 that there were over 500 members of LRAS,
most of whom would reside in Polk County, exhibits attached to those depositions included a partial membership list with at least 25 current members residing in Polk County,5 in addition to other members residing in Polk County who testified during the final hearing.
Article II of LRAS' Articles of Incorporation states that LRAS was formed "to promote an understanding and interest in wildlife and the environment that supports it and to further the cause of conservation." It also includes language generally empowering the corporation to "have and exercise all
of the powers of like corporations not for profit and to do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers herein set forth, . . . and to do every other act or acts, thing or things incident or pertinent to or growing out of or connected with the aforesaid objects, purposes or powers or any of them." Finally, it includes the admonition that enumeration of specific "powers and objects . . . shall not in anyway be construed as any limitation or derogation of any power or object herein specifically named or any general power which this corporation might otherwise have."
Spanish Oaks6 contends that LRAS has no standing in part because the Petition and Amended Petition was "ultra vires"-i.e., that, although there was no evidence that LRAS was dissolved or otherwise not in good standing as a duly- organized not-for-profit corporation, the signers did not have the legal authority to sign or file either the Petition or the Amended Petition on behalf of LRAS under its articles of incorporation and by-laws.
At the time of its formation in 1962, LRAS had eleven charter members, six officers, and ten directors. Article VI of the Articles of Incorporation provided, in pertinent part:
The affairs of the corporation shall be managed by a board of directors of "not less than five members of the officers provided for in this charter and the Board of Directors shall elect a president, a first vice president, a second vice president, a secretary and a treasurer.
The number of directors shall be fixed by the by-laws of the corporation, but in no instance shall the number of directors be less than five. The Board of Directors may establish an Executive Committee from the members of the Board of Directors by resolution and may provide for the setting up of advisory boards or councils. The Board of Directors shall be elected from the voting members of the corporation at an annual meeting to be held in June of each year at a date to be determined by the Board of Directors at least fifteen days prior to such meeting. A quorum for the purpose of transacting business shall consist of those present.
The officers and directors herein provided for shall serve until the next general election of the corporation, provided, however, that in the event of any vacancies prior to that time the Board of Directors may fill such vacancies by majority vote.
There was no evidence of any amendment to those provisions in the articles of incorporation.
Article I of LRAS' By-Laws, as last revised on April 7, 2002, provided for a president to: "(a) preside at
meetings of the Society and of the Board of Directors; . . . ;
(c) decide all questions of order, and act as judge in elections and declare the results; (d) appoint, subject to the Executive Committee's approval, the chairmen of the Standing Committee, and the chairmen of such special committees as may
be authorized by the Board; (e) perform such other duties as the Board or the By-Laws may from time to time assign." It also provided for: a first vice-president, who was to preside and perform the duties of the president in the absence or inability of the president; a second vice-president, who was to preside and perform the duties of the president in the absence or inability of the president and first vice- president; a third vice-president to coordinate all field activities; a fourth vice-president to coordinate all membership activities; a fifth vice-president to be the newsletter editor; a recording secretary to keep an accurate record of all meetings, act as secretary of the board of directors, keep a record of attendance at meetings of the board of directors, and act as custodian of all records and papers; a corresponding secretary, who was to perform the duties of the recording secretary in the absence or inability of the recording secretary; and a treasurer.
Article II of the By-Laws provided for the board of
directors to "be composed of all officers and committee chairmen, and other members who may be appointed by the President." It also provided that the board of directors had the "power to fill vacancies in the list of officers." It also provided: "A majority of officers shall have the power
to carry on the affairs of the Society in the event of emergency, between Board Meetings."
Article III of the By-Laws provided for committees to be established by the president as deemed necessary as well as apparently for appointment of individuals with special responsibilities.
Article IV provided for elections, including: "A Nominating Committee, consisting of a Chairman and two other members appointed by the President and announced at the January Board Meeting, shall submit a slate of officers at the March meeting for approval by the Board, to be voted on at the Annual Meeting of the Society in April. . . . A majority of the votes cast shall constitute an election. If there are no nominations from the floor, the slate of officers shall stand as presented." It also provided: "Elected officers shall be elected for a term of one year, and shall hold office until their successors have been elected." The president was limited to two consecutive terms, or a third consecutive term upon majority vote of the board of directors.
Article V of the By-Laws provided for: open meetings of the board of directors to be held on the second Wednesday of each month September through May, unless changed on ten days notice to each board member; special meetings at the call of the president or written request of five members,
with "due notice"; and one annual meeting to be held in April, unless changed by direction of the board.
Article VI provided that a majority of the board would constitute a quorum, provided at least two officers were present, and that 15 members, including at least four Board members, would be a quorum for the annual meeting.
Article VIII provided that membership in National Audubon, Florida Audubon or LRAS would constitute membership in all three levels for anyone living within the LRAS area.
As indicated above, there are inconsistencies between the Articles of Incorporation and the By-Laws. For example, the Articles of Incorporation provide for an annual meeting in June, while the By-Laws provide for the annual meeting to take place in April, unless changed by the board of directors. In addition, the By-Laws provide for more officers than the Articles of Incorporation. Finally, the Articles of Incorporation provide that a quorum at the annual meeting shall consist of those present, while the By-Laws provide for a quorum of a majority of the board, provided at least two are officers, and that 15 members, including at least four board members, would be a quorum for the annual meeting. Under Section 617.0206, Florida Statutes, by-laws must be consistent with the articles of incorporation.
Even allowing for the inconsistencies between the Articles of Incorporation and the By-Laws, the evidence suggested that, notwithstanding the formal and detailed (if somewhat inconsistent) provisions in the Articles of Incorporation and By-Laws, LRAS has operated less formally and with less attention to those details at least in recent years, in part because it is a totally-volunteer organization and seems always to be looking for members to share in the tasks of continued operation. Any member who expresses interest in the business of the organization is welcome to volunteer to be on the board of directors. Any volunteer is virtually assured of becoming a board member. There certainly are no contested elections. Spanish Oaks questions whether the process used results in the legitimate election of members of the board of directors and appointment of officers in accordance with the Articles of Incorporation and By-Laws.
The evidence presented by Spanish Oaks as to status
of LRAS' board of directors and officers was unclear. It consisted of the deposition testimony of Paul Anderson, Carrie Plair, and Chuck Geanangel, along with minutes attached as exhibits to the Anderson deposition. In addition, while not actually introduced in evidence at the final hearing, the minutes of the May 2005 meeting of the board of directors were attached to and formed part of the basis for the Motion for
Summary Recommended Order which was filed by Spanish Oaks and joined by SWFWMD. In addition, the PRO filed by Spanish Oaks cited to these attachments to the Motion for Summary Recommended Order.7
The evidence indicates that, notwithstanding provisions in the Articles of Incorporation and By-Laws, for the last two years LRAS has operated using a five-member steering committee (also referred to as an executive board) instead of a president. Designed to relieve the burden on long-serving volunteer president, Pat Herbert, the idea was that the steering committee would rotate responsibility for conducting board meetings, so that each committee member would conduct two meetings a year.
Anderson and Plair testified that they were on the LRAS Steering Committee, along with Geanangle, Bill Karnofsky and Mae Hartsaw. Plair testified that all members of the Steering Committee are members of the board of directors, along with all other officers. Anderson also named several other officers from memory--Liz Purnell, Paul Fellers (a vice- president), Gary McCoy (membership chair), and Herman Moulden (newsletter editor). He deferred to a list of board members, which he did not have with him and which was not placed in evidence. Plair named a few other board members--Bob Snow, Gina Lucas, Gil Lucas--along with Fellers.
The minutes placed in evidence by Spanish Oaks all state that they are minutes of board of directors meetings and do not refer to an annual general membership meeting.
However, Anderson testified that a board of directors meeting is combined with the annual general membership meeting. He believed it was in December but was not sure. Geanangel testified that the annual general membership meeting was in the spring, which was consistent with Plair's recollection, and was noticed as such. Plair testified that there generally were meeting agendas for all board of directors meetings (one of which, according to the testimony, would be the annual general membership meeting). No notices or agendas of meetings were placed in evidence.
The minutes placed in evidence started with the September 2003 meeting of the board of directors. According to the minutes, Karnofsky conducted the meeting and also presented a treasurer's report, indicating that he also was the Treasurer at the time. Herbert, Louise Lang, Hartsaw, Plair, Paul and Janet Anderson, Ann Pinner, Gil and Gina Lucas, Paul Fellers, and Rae Bourqueim also attended. Bourquein announced a newsletter deadline. Pinner was looking for volunteers. Under old business, the rotation for conducting the next several meetings was announced: Karnofsky for October 2003, Plair for November and December 2003, Paul
Anderson in January and February 2004, and Hartsaw in March and April 2004. Janet Anderson was congratulated on the job she was doing as "Publicity Chairperson." A December 2003 Christmas party was announced. Motions were made or seconded by Gil Lucas, Paul Anderson, Bourqueim, Fellers, and Hartsaw (suggesting that they were members of the board of directors). The minutes were recorded by Gina Lucas, as "Secretary Pro Tem." There was no other indication in those minutes as to who the officers and board members were.
The minutes of the October 2003 meeting indicate that the meeting was conducted by Herbert, not Karnofsky, who was unable to attend due to illness. Nine others attended, including the Andersons, Plair, the Lucases, Fellers, Bourquein, Herbert, and Purnell, who was the Recording Secretary.
The November 2003 minutes indicate that Plair conducted the board meeting. Hartsaw, Bourquein, Geanangel, Karnofsky, the Lucases, Fellers, Marvel Loftus, the Andersons, Ron Butts, Herbert, and three others also attended, along with Purnell, the Recording Secretary. Motions were made or seconded by Paul Anderson, Hartsaw, Fellers, Herbert, Geanangel, and Janet Anderson.
The minutes of the January 2004 meeting of the board of directors indicate that Paul Anderson conducted the
meeting, Karnofsky presented a treasurer's report, and Purnell was the Recording Secretary. Hartsaw and Geanangel attended the meeting, along with the Andersons, the Lucases, Herbert, Lang, Loftus, and two others. A motion was made by Herbert and seconded by Loftus.
According to the minutes of the February 2004 meeting of the board of directors, it was conducted by Paul Anderson again, again included Karnofsky's treasurer's report, and again was recorded by Purnell. Janet Anderson, Lang, Plair, Hartsaw, the Lucases, Geanangel, and three others also attended. The minutes indicate that Chuck Geanangel would conduct the March 2004 meeting. They also included the reports of several others, including Plair and Hartsaw, without specifying whether they were officers. The minutes indicated that the slate of candidates would be the same as the current officers, but they do not specify who the current officers were, or whether the reference to "officers" was meant to include board members.
The minutes of the March and April 2004 meetings, which were conducted by Geanangel and also attended by Hartsaw, the Andersons, Bourquein, Karnofsky, Purnell, Loftus, Pinner, Plair, Fellers, and others. Motions were made or seconded by Herbert, Paul Anderson, Hartsaw, and Loftus.
These minutes do not reveal any more information about who the
officers were but do reflect that Ron Butts was willing to be on the board of directors and would be contacted about the position.
The minutes indicate that a board of directors meeting was held on May 12, 2004, and that it was conducted by Anderson again and was attended by 13 people, including Plair, Hartsaw, Butts, and Geanangel. The minutes do not mention its being a general membership meeting, do not mention any voting, and do not mention any nominations from the floor for membership on the board of directors. They indicate that a new membership chair volunteer was called for and that Karnofsky would be asked to conduct the next meeting in September 2004. Motions were made or seconded by Hartsaw, Butts, Geanangel, and Loftus.
The September 2004 minutes indicate that the board meeting was conducted by Geanangel, not Karnofsky, who was absent and did not present his treasurer's report. Plair, the Andersons, Butts, and Ann Pinner attended. Motions were made or seconded by Janet Anderson, Geanangel, Butts, Plair, Paul Anderson, and Pinner. A House Interior Committee was formed, with Plair, Susie Brantley, and Gina Lucas as members.
Janet Anderson recorded the minutes in Purnell's absence.
According to the minutes, Geanangel also conducted the October 2004 meeting of the board, which was also attended
by Bourquein, Karnofsky (who gave the treasurer's report), Pinner, Plair, the Andersons, Paul and Donna Fellers, Butts, the Lucases, and Purnell, the Recording Secretary. Gina Lucas reported for the House Interior Committee. Motions were made or seconded by Butts, Loftus, and Paul Fellers.
According to the minutes, Plair conducted the November 2004 meeting of the board, which was also attended by Karnofsky (who gave the treasurer's report), Pinner, the Andersons, Hartsaw, Butts, one other person, and Purnell, the Recording Secretary. It was announced that Bourquein was resigning from her position as Newsletter Editor. There was no replacement yet.
The next minutes were for a board meeting in
January 2005. Paul Anderson conducted the meeting, which also was attended by Geanangel, Plair, Karnofsky (who gave the treasurer's report), Hartsaw, Gary McCoy, Pinner, Paul Fellers, the Lucases, Butts, one other person, and Purnell, the Recording Secretary. McCoy was introduced as the new Membership Chairman, and it was announced that Herman Moulden had accepted responsibility for the newsletter and website.
Geanangel reported on Polk County's desire to use the Saddle Creek property owned by Audubon of Florida for water storage, flow, and quality purposes. Leadership vacancies for Nature
Faire and Corresponding Secretary were announced. A motion was made by Pinner and seconded by Hartsaw.
According to the minutes, the February 2005 meeting was conducted by Paul Anderson. Plair, Karnofsky, Butts, McCoy, Hartsaw, the Andersons, Moulden, Geanangel, Pinner, Paul Fellers, and Purnell attended. Moulden solicited articles for the newsletter. It was suggested that an invitation to serve on the board be extended to Bob Snow. Motions were made or seconded by Butts, Janet Anderson, Plair, and Pinner. Purnell recorded the minutes.
According to the minutes, the March 2005 meeting was conducted by Hartsaw. The Andersons, Paul Fellers, Moulden, McCoy, Butts, Karnofsky, Plair, Geanangel, and one other person also attended. McCoy presented a membership report, and Moulden reported on the newsletter. Geanangel reported on negotiations with Polk County on the Saddle Creek property. Motions were made or seconded by Paul Anderson, Fellers, and Karnofsky. Hartsaw would chair the April meeting. Paul Anderson recorded the minutes in Purnell's absence.
According to the minutes, the April 2005 meeting was conducted by Hartsaw. Pinner, McCoy, Karnofsky, the Andersons, Moulden, the Lucases, Butts, Plair, Paul Fellers, Purnell (the Recording Secretary), and one other person also attended. Karnofsky gave his treasurer's report, Moulden
asked for newsletter articles, and a nominating committee was appointed, consisting of Paul Anderson, Karnofsky, and Plair. A motion was made by Karnofsky and seconded by Loftus. The real need for a corresponding secretary was discussed.
According to the minutes,8 the May 11, 2005 meeting was conducted by Karnofsky. Plair, Butts, the Andersons, Pinner, McCoy, Moulden, Geanangel, Purnell (the Recording Secretary), Donna Stark, and one other person also attended. Motions were made by Paul Anderson and seconded by Pinner. The minutes reflect a nominating committee report which included: a five-member Steering Committee of Karnofsky, Hartsaw, Geanangel, Plair, and Paul Anderson; Hartsaw as Vice- President for Programs; Geanangel as Vice-President for Conservation; Paul Fellers as Vice-President for Field Trips; McCoy as Vice-President for Membership; Moulden as Vice-
President for News Letter; Karnofsky as Treasurer; and Purnell as Recording Secretary. Also nominated as members of the board of directors were: Janet Anderson, Louise Lang, Marvel Loftus, the Lucases, Butts, McCoy, Moulden, Snow, Pinner, and six others. No voting or nominations from the floor are reflected in the minutes.
While the evidence was not clear, it appears from the testimony and minutes that all those attending the board of directors meeting on May 11, 2005, except for Donna Stark
and one other person, were officers or otherwise members of the board of directors under the Articles of Incorporation and the By-Laws. The minutes of the February 2004 board meeting state that the "LRAS Candidate slate will be the same as the current officers." It appears that they included at least Karnofsky, Bourqueim, and Purnell and that Karnofsky, Plair, Paul Anderson, Hartsaw, and Geanangel were on the steering committee. Assuming the use of the word "officers" in the minutes meant to include the current board members who were not officers, it appears that they also would have included Herbert, Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts. There are no minutes mentioning a noticed general membership meeting or election of the board of directors in the spring of 2004. If there was one, the minutes do not indicate that there were nominations from the floor. If there was a noticed general membership meeting for purposes of electing the board of directors, with a quorum, and there were no nominations from the floor, either the slate of current officers (and, probably, directors) "stood," or the officers and board of directors would continue to serve until the next general election, under Article VI of the Articles of Incorporation. In either case, vacancies prior to that time could be filled by the board of directors by majority vote, and it would appear that, at the beginning of the board
meeting on May 11, 2005: the officers included at least Karnofsky, Purnell, McCoy, and Moulden; the steering committee still consisted the same five; and other board members included at least Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts.
Only 12 individuals appearing to be board members attended the meeting on May 11, 2005. While this would not be a quorum under the By-Laws, it would be a quorum under the Articles of Incorporation, which would control over inconsistent By-Laws.9 Assuming the May 2005 meeting was the noticed general membership meeting, since the minutes do not reflect any nominations from the floor, the slate stood as presented under Article IV of the By-Laws. If not, (or if the By-Laws established the necessary quorum), under Article VI of the Articles of Incorporation, the current officers and board of directors would serve until the next general election. In either case, it appears that authorized officers and directors were in place and in attendance at the board meeting on
May 11, 2005, and that there was a quorum for transacting business under the Articles of Incorporation. In any event, Spanish Oaks did not prove the contrary.
According to the May 2005 minutes, as well as the testimony at the final hearing, Donna Stark made a presentation asserting that Spanish Oaks was using at least
three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP.
After the presentation, the board decided that the Steering Committee would continue to investigate and make a decision as to what role LRAS should have in the future. Although the minutes do not reflect a vote on a resolution, the assigned task of the Steering Committee was like the role of the "Executive Committee" referred to in Article VI of the Articles of Incorporation. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft the Petition, which was signed by four members of the Steering Committee between May 31 and June 2, 2005, as well as the Amended Petition signed by "LRAS Steering Committee/Acting President Carrie Plair" on July 6, 2005. Starks actually drafted almost all of the Petition and Amended Petition.
The subject of the challenge in the Petition and Amended Petition is virtually identical to a challenge to Spanish Oaks' ERP that was filed by Starks on behalf of her not-for-profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours got mailed notice of the issuance of the ERP to
Spanish Oaks. Spanish Oaks implied that Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for her ulterior motives. But those allegations were denied by LRAS and were not proven.
Alleged Sinkholes
The principal concern raised by LRAS, both in its Amended Petition and at hearing, is that one or more of the retention ponds constructed on Spanish Oaks is located over a sinkhole. LRAS is of the view that this alone should mandate that the ERP application be denied.
Retention ponds are often located in depressional areas since these land features are generally the lowest spots on a property and allow the engineers designing a surface water management system to utilize the land’s natural drainage configuration. A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection-- referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer.
Retention ponds are intended to allow infiltration of water through the soils underlying the pond bottom. This infiltration through soil layers provides water quality
treatment, and it is necessary to ensure that the bottom surface of a retention pond is sufficiently separated by soils from the top of the aquifer.
If an active sinkhole develops in a retention pond, SWFWMD requires that some corrective action be taken. Generally, this involves refilling the cavity formed by the sinkhole. However, because retention ponds are designed to allow infiltration through the pond bottoms, care must be taken to ensure that any fill does not impede this infiltration function.
The bottoms of the retention ponds at Spanish Oaks are approximately seven feet below natural grade. The Floridan Aquifer in the Spanish Oaks vicinity is approximately
75 feet below grade. The separation between the pond bottoms and the limestone that is part of the aquifer is sufficient to provide adequate water quality treatment.
Soil borings done around the perimeter of each of the ponds indicate the presence of clays and clayey sands between the pond bottoms and the aquifer. These soil layers act as an aquitard that impedes the migration of water into the bedrock (and upper soils into lower cavities, voids, or ravel zones, which are areas of loose, unconsolidated soils capable of further downward subsidence). In each instance,
the depth at which the aquitard occurs is below the bottom depth of the retention ponds.
There was no competent evidence admitted at hearing to suggest that there are active sinkholes in or under any of the three retention ponds on Spanish Oaks. To the contrary, the SWFWMD personnel who have been on the site testified that they saw nothing on the site that indicated the presence of an active sinkhole. Contractors and engineers who were on the site prior to and during construction of Spanish Oaks stated that they were not aware of any active sinkholes.
Nonetheless, because LRAS made the allegation that there were sinkholes on the site, Spanish Oaks retained a geotechnical engineer with expertise in sinkholes, Sonny Gulati, to conduct a sinkhole investigation of the three retention ponds. Mr. Gulati used testing protocols that are generally utilized to determine whether sinkhole activity has caused damage to a building or other structure. Mr. Gulati observed no damage to the retention ponds and his investigation revealed no sinkhole activity onsite. (LRAS’ expert also was unaware of any damage to the retention ponds.)
Mr. Gulati used both ground penetrating radar (GPR) and standard penetration testing (SPT) during his investigation. GPR makes use of repetitive, short-duration, electromagnetic waves, which are deflected back to a receiver
by interfaces between materials. GPR detects subsurface
features such as sinkholes and voids through the reflected radar signal.
GPR must be conducted with the transmitter in contact with the ground surface. It cannot be used over a water surface. Mr. Gulati took GPR readings around each of the three retention ponds, in two circles, one contained within the other. GPR data collected on the Spanish Oaks site revealed no subsurface anomalies.
SPT is described in Mr. Gulati’s report as:
a widely accepted method of in-situ testing of foundation soils (ASTM D-1586). A two- foot long, two-inch outside diameter, split barrel (“spoon”) sampler, attached to the end of drilling rods, is driven 18.0 inches into the ground by successive blows of a 140-pound hammer freely dropping 30.0 inches. The number of blows needed for each six (6) inches of penetration is recorded. The sum of the blows required for penetration of the second and third
six-inch increments of penetration
constitutes the test result or N-value.
LRAS Exhibit 5, p. 23.
An N-value of less than 2 indicates the presence of a ravel zone, a subsurface area with voids or loose soils into which soils from upper strata can travel and which acts as a conduit between strata. An N-value of less than 4, in combination with a loss of drilling fluid,10 may also indicate
a ravel zone. Solutioned calcareous ravel zones are those
ravel zones that occur in the limestone that forms the top of the Floridan Aquifer.
Based on his investigation, Mr. Gulati concluded as follows:
Our investigation did not reveal the existence of specific conditions such as cavities or voids, solutioned calcareous ravel zones, or the presence corroded bedrock conditions located above the dense bedrock stratum indicative of sinkhole activity at the subject site. Based on the interpretations of our recent subsoil investigation, site reconnaissance, available background and geologic data, it is our opinion that the subject site has not been impacted by a sinkhole related activity. In our professional opinion, the scope of work included in this analysis is of sufficient scope to eliminate sinkhole activity at the subject site within a reasonable professional probability.
LRAS-5 at 18 (emphasis in original). SWFWMD's expert agreed that there is no direct connection to the Floridan Aquifer.
Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the
Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13
The only suggestion of any sinkhole-related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement.
Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse.
Stark may have been confused by the amount of excavated material being stored on the ground surface around
the pond. 43,906 cubic yards of dirt was excavated from Pond
A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation.
Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.”
Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite.
Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination.
Construction of Berms
LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14
The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water.
The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity."
LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required.
To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP.
SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters.
SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP.
CONCLUSIONS OF LAW
Standing
Spanish Oaks and SWFWMD challenge LRAS' standing
both under Sections 120.569 and 120.57 and under Section 403.412(6), Florida Statutes.
Party status under Sections 120.569 and 120.57 can be based on proof that "substantial interests will be affected by proposed agency action." § 120.52(12)(b), Fla. Stat. This requires proof of "an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected" by the substantive law. § 403.412(5), Fla. Stat. See also Agrico Chemical Co. v. Dept. of Environmental Reg.,
406 So. 2d 478 (Fla. 2d DCA 1981). An organization like LRAS may allege and prove either that its own substantial interests or that the substantial interests of a substantial number of its members will be affected. See Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); Farmworker Rights Organization, Inc. v. Dept. of Health, etc., 417 So. 2d 753 (Fla. 1st DCA 1982). As found, no evidence was presented to prove standing under either of those options.
Spanish Oaks and SWFWMD contend that LRAS does not have party status under Section 403.412(6) because, while a not-for-profit Florida corporation formed in the 1960s, it does not have more than 25 current members and was not "formed
for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality." As found, LRAS proved that it has more than 25 current members. In addition, LRAS' Articles of Incorporation state that LRAS not only was formed "to promote an understanding and interest in wildlife and the environment that supports it and to further the cause of conservation" but also that mention of this specific purpose was not intended to limit either its power under that specific purpose or any general power it might otherwise have.
It is concluded that, to determine whether LRAS' Articles of Incorporation meet the requirements of Subsection
(6) of the statute, Subsection (6) must be read in pari materia with Subsection (5), which applies "[i]n any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction . . . ." Conservation of resources protects them from pollution, impairment, or destruction. It is concluded that the language of LRAS' Articles of Incorporation comes within the meaning of Subsection (6). Use of virtually the identical statutory language is not mandatory. For these reasons, it is concluded that LRAS has standing under Section 403.412(6).
Authorized Corporate Filing
Spanish Oaks also contends that the individuals who signed and filed the original Petition and Amended Petition did not have legal authority to do so on LRAS' behalf (and that they did not prove standing as individuals).
Florida not-for-profit corporations can act only through, or as authorized by, its board of directors (as stated a LRAS’ Articles of Incorporation.) See § 617.0801, Fla. Stat. (“[a]ll corporate powers must be exercised by or under the authority of, and the affairs of the corporation managed under the direction of, its board of directors”); Finding 12, supra. See also Yarnell Warehouse & Transfer, Inc. v. Three Ivory Bros. Moving Co., 226 So. 2d 887, 890 (Fla. 2d DCA 1969) (“[t]he management of corporate business is vested in the directors of the corporation”).
Section 617.0803(3) requires that the board of directors of a not-for-profit corporation be elected or selected in the manner set forth in the corporation’s articles of incorporation. Spanish Oaks contends that LRAS does not have a properly elected board of directors and that this administrative proceeding was neither brought nor authorized by the board of directors on behalf of LRAS.
As LRAS points out, Section 617.0304 provides that only a not-for-profit corporation’s members, the corporation
itself, or the state attorney general can challenge the validity of corporate action “on the grounds that the corporation lacks or lacked the power to act." Spanish Oaks takes the position that it is not here challenging the power of LRAS to act, but only whether certain individuals had the authority to act on the corporation’s behalf. But the case cited by Spanish Oaks in support of this distinction, World of Life Ministries, 778 So. 2d 360, 364 (Fla. 1st DCA 2001), involved a suit brought by members and the not-for-profit corporation itself against corporate officers, as authorized under Section 617.0304(2)(b), on the ground that the authentic board of directors did not vote on amendments to the articles of incorporation purporting to shift power and authority from the authentic board of directors to the defendants. It does not stand for the proposition that an outsider, other than the attorney general, can mount a challenge questioning the authority of individuals who purport to act for a corporation.
Even assuming that Section 617.0304 does not
prohibit Spanish Oaks' challenge to the validity of the Petition and Amended Petition under the circumstances of this case, the law is clear that "the board of directors ha[s] the power to appoint and authorize a committee of their number to act for the corporation in a particular matter." See Yarnell Warehouse & Transfer, Inc. v. Three Ivory Bros. Moving Co.,
supra at 891. As found, Spanish Oaks did not prove that the authentic LRAS board of directors did not validly delegate to its Steering Committee the authority to investigate and act on the matters presented by Donna Starks. It is concluded that the burden of proof on this issue was on Spanish Oaks, as it also would be on a party asserting that a corporate act was ultra vires, or a party seeking to "pierce the corporate veil" and have a court disregard the corporate entity. Cf. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120 (Fla.
1984); Computer Center, Inc. v. Vedapco, Inc., 320 So.2d 404,
407 (Fla. 4th DCA 1975).
Burdens of Proof and Persuasion, ERP Criteria, and Reasonable Assurance
This is a de novo proceeding designed to formulate final agency action. See Hamilton County Board of County Commissioners v. State Department of Environmental Regulation,
587 So. 2d 1378 (Fla. 1st DCA 1991); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786- 787 (Fla. 1st DCA 1981); § 120.57(1)(k), Fla.Stat.
As applicant, Spanish Oaks has the ultimate burden of proof and burden of persuasion. See Florida Department of Transportation v. J.W.C. Company, Inc., supra at 786-789. Upon presentation of a prima facie case of credible evidence of reasonable assurances and entitlement to the permit, the burden of presenting evidence can be shifted to the
Petitioner, as permit challenger, to present evidence of equivalent quality to refute the applicant’s evidence of reasonable assurances and entitlement to the permit. Id.; Ward v. Okaloosa County, 11 F.A.L.R. 4217, 4236; 1989 WL
645052 (DER 1989).
Upon agreement of the parties, SWFWMD's file of record for ERP No. 44025789.001 containing the permit application, all supporting information and documents, and the agency’s analysis and decision concerning issuance of the permit, was submitted as Joint Exhibit 1.
Joint Exhibit 1 established a prima facie case of reasonable assurances and entitlement to the permit. Thus, as permit challenger, LRAS had the burden of producing evidence of equivalent quality to refute Spanish Oaks’ prima facie case. Petitioner’s burden cannot be met by mere speculation on what might occur. Citizens Against Blasting Inc., v. Department of Environmental Protection and Angelo’s Aggregate Materials Ltd., 23 F.A.L.R. 2463, 2001 WL 1190935 (DEP 2001); Chipola Basin Protective Group Inc., et al. v. Department of Environmental Regulation, 11 F.A.L.R. 467, 480-481, 1988 WL 185574, at *3-7 (DER 1988).
If Petitioner presents evidence of equivalent quality, the question becomes whether, taking all the evidence into consideration, Spanish Oaks has proven reasonable
assurances and entitlement to the permit by a preponderance of the evidence. A “preponderance” of the evidence means the greater weight of the evidence. See Fireman’s Fund Indemnity Co. v. Perry, 5 So. 2d 862 (Fla. 1942).
Issuance of an ERP must be based solely on compliance with applicable permit criteria. See Council of the Lower Keys v. Charley Toppino & Sons, Inc., 420 So. 2d 67 (Fla. 3d DCA 1983). Reasonable assurance contemplates a substantial likelihood that the project will be successfully implemented. See Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian Trace Community Development District, 14 F.A.L.R. 866, 869 (SFWMD 1992); Manasota-88 Inc. v. Agrico Chemical Co. and Department of Environmental Regulation, 12 F.A.L.R. 1319, 1990 WL 128587 (DER 1990).
The applicable criteria for the issuance of a standard general ERP for the Spanish Oaks project are set forth in Rules 40D-4.301 and 40D-4.302, as well as SWFWMD's Basis of Review (BOR), which is made applicable pursuant to Rule 40D-4.301(3).
LRAS’ challenge to the ERP alleges the presence of a sinkhole or a sinkhole collapse in one or more of the retention ponds for the Spanish Oaks subdivision, and the impact that such alleged sinkhole or sinkhole collapse would have on conditions for issuance relating to groundwater quality.
LRAS’ case reflects a basic misperception of the permitting criteria applicable to surface water management system retention ponds. Section 6.4.1.b. of the BOR, which establishes specific design criteria for retention areas, requires as follows:
Depth – The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District, where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer.
As found, the Spanish Oaks retention ponds comply with this criterion.
LRAS also contends that the Spanish Oaks retention ponds violate Rule 62-522.300, a rule which, in LRAS’ view, prohibits the location of a stormwater retention pond in or over a sinkhole. LRAS’ reading of the rule is incorrect.
Rule 62-522.300(1), with certain exceptions not relevant here, provides that
no installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the
. . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter.
The purpose of a zone of discharge is to provide a mixing zone “extending to the base of the designated aquifer or aquifers, within which an opportunity for the treatment, mixture or dispersion of wastes into receiving ground water is afforded.” Fla. Admin. Code R. 62-520.200(23). No evidence introduced at hearing suggests that the surface water runoff that infiltrates through the bottom surfaces of the Spanish Oaks retention ponds, and then travels approximately 70 feet through soil before reaching the Floridan aquifer, will exceed applicable ground water criteria when it reaches the aquifer. For that reason, the Spanish Oaks retention ponds do not need a zone of discharge. Rule 62-522.300(3) provides that
Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge.
(Emphasis supplied). Classes F-1, G-1, and G-II groundwaters are designated for potable use and are located within an aquifer. Fla. Admin. Code R. 62-520.410. “Aquifer” is
specifically defined as “a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water." Fla. Admin. Code R. 62-520.200(2). Unless the alleged sinkholes allowed "direct contact" with the Floridan Aquifer, a zone of discharge would be permitted, assuming one were needed.
No evidence introduced at hearing suggests that discharges from the retention ponds will come into direct contact with Class G-1, Class F-1, or Class G-II groundwaters. Instead, the discharges from the Spanish Oaks ponds only indirectly contact a drinking water aquifer, after infiltrating through tens of feet of separating soil layers. LRAS has not identified any applicable rule that prohibits the location of a retention pond in or over a relic sinkhole. Indeed, the record establishes that the presence of a sinkhole in or under a retention pond is problematic only if sinkhole activity affects the approved design of the retention pond. See Findings 47 and 49, supra.
LRAS’s assertion of a sinkhole collapse at Spanish Oaks during the time frame alleged is contrary to the greater weight of the evidence, which established that the ponds have been constructed and are operating as designed and that there is no active sinkhole on the Spanish Oaks site that adversely
affects the quality of receiving waters such that state water quality standards would be violated, or that otherwise affects Spanish Oaks’ ability to provide reasonable assurance of meeting applicable permitting conditions.
LRAS offered no evidence to establish that water percolating through the Spanish Oaks retention ponds will come into direct contact with a drinking water aquifer or that a state water quality standard would be violated by the project. The greater weight of the evidence established that the Spanish Oaks retention ponds comply with the applicable construction requirement as stated in BOR Section 6.4.1.b. There is more than sufficient soil underlying the Spanish Oaks retention ponds to assure compliance with this requirement.
As found, Spanish Oaks' failure to notify Mr.
Hartmann before beginning construction of the clay core berm does not prevent Spanish Oaks from providing reasonable assurance that permit criteria will be met. As a result, Spanish Oaks has met its burden of proof and persuasion that all conditions for issuance of the permit have been satisfied and that it is entitled to the requested ERP.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that SWFWMD issue a final order approving the issuance of ERP 44025789.001 to Spanish Oaks. Jurisdiction is retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order.
DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 10th day of November, 2005.
ENDNOTES
1/ As will be seen, Spanish Oaks and SWFWMD contend that LRAS actually never filed a Petition or Amended Petition because the filings were not made or authorized by LRAS' board of directors.
2/ All statutory citations are to the 2004 codification of the Florida Statutes.
3/ The Amended Petition also alleged that Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures, but no evidence was presented by LRAS on this issue, which appears to have been abandoned.
4/ All rule references are to the current codification of the Florida Administrative Code.
5/ Spanish Oaks and SWFWMD argue that the list does not specify current membership, but it includes both an "expire date" and a "renew/paid date" from which current membership can be ascertained.
6/ SWFWMD joined in the Motion for Summary Recommended Order filed by Spanish Oaks on this issue, but its PRO does not mention the issue.
7/ In discovery, LRAS initially refused to produce these minutes because they were in draft form and not yet approved by the board of directors, which did not meet again until September 2005. For that reason, Spanish Oaks questioned their existence. The minutes of the September 2005 board meeting were not placed in evidence. However, these minutes were attached to LRAS' Response to Spanish Oaks' Motion for Summary Recommended Order, along with the minutes of an officers' emergency meeting on September 25, 2005. These minutes indicated that the minutes of the May 11, 2005, meeting were not approved until the Emergency Officers Meeting on September 25, 2005. Spanish Oaks still questions the credibility of the minutes from May 11, 2005.
8/ See Finding 22, supra. 9/ See Finding 20, supra.
10/ Loss of drilling fluid may indicate the presence of a large cavern or ravel zone.
11/ Notably, Mr. Hurst has only participated in four sinkhole investigations and reviewed the reports of approximately six other such investigations, while Mr. Gulati has conducted between 700 and 800 during the past ten years.
12/ The anecdotal testimony of Charles Cook and Tom Jackson regarding their observations of depressions and “cracks” at the site several years earlier did not support a finding that there is an active sinkhole. Mr. Jackson, a geologist for SWFWMD, was not willing to draw such a conclusion.
13/ Mr. Gulati acknowledged that, in areas where the aquifer is under artesian pressure, an active sinkhole will hold water. However, that aquifer condition does not exist in the vicinity of Spanish Oaks. T. 358.
14/ The Amended Petition actually alleged that this was a permit condition violation requiring revocation of the ERP. However, it was ruled prehearing that "the Petitioner's request for revocation actually is a request for a final order denying Spanish Oaks' application for a permit" and that "the allegations of non-compliance with permit conditions should not be stricken but instead should be considered only as they might relate to Spanish Oaks' provision of required reasonable assurances for issuance of a permit." See Order on Motion to Dismiss or Strike and Request for Stop-Work Order, entered August 17, 2005.
15/ Pond B is centrally located in the Spanish Oaks’ interior.
COPIES FURNISHED:
David L. Moore, Executive Director Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Martha A. Moore, Esquire Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34604-6899
Paul Anderson
Lake Region Audubon Society
115 Lameraux Road
Winter Haven, Florida 33884
Martha Harrell Chumbler, Esquire Carlton Fields, P.A.
Post Office Drawer 190
215 South Monroe Street, Suite 500 Tallahassee, Florida 32302-0190
Benjamin W. Hardin, Jr., Esquire Hardin & Associates, P.A.
Post Office Box 3604 Lakeland, Florida 33802-3604
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 2005 | Agency Final Order | |
| Nov. 10, 2005 | Recommended Order | Not-for-profit had standing under Subsection 403.412(6), Florida Statutes, and filings were not ultra vires; but the Environmental Resource Permit criteria for dry detention ponds were met, despite sinkhole allegations. |
