STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

A hearing was held in the above-styled matter, after due notice, on March

10 and 29, 1976, at Fort Myers, Florida, before the undersigned Hearing Officer

APPEARANCES

For the Applicant: Thomas G. Pelham, Esquire

Post Office Box 1109 Tallahassee, Florida 32302

Madison F. Pacetti, Esquire

324 Royal Palm Way Palm Beach, Florida

For Central and Mr. John Wheeler Southern Florida Post Office Box V

Flood Control District West Palm Beach, Florida 33402

For the Intervenors: Charles A. Ball, Jr., Esquire

Route 1, Box 486 Ft. Myers, Florida

Richard D. DeBoest, Esquire Post Office Box 1480

Fort Myers, Florida 33902

Public notice of hearing was published on February 19 and 26, 1976, in the Fort Myers News Press, Ft. Myers, Florida, by the Central and Southern Florida Flood Control District (hereinafter FCD) (Exhibit 2.)

On February 24, 1976, the FCD received an unsigned letter, dated February 21, advising that a number of individuals wished to appear and comment at the hearing and requesting that any correspondence be addressed to the Eastern Lee County Improvement Association, Route 4, Box 510, Fort Myers, Florida, 33905 (Exhibit 3.) Additionally, a postcard, dated February 24, 1976, to the FCD advised that William Hammond wished to be included on the agenda to comment on the application at the hearing (Exhibit 4.)

At the commencement of the hearing, oral petitions to intervene and for continuance were made by Charles A. Ball, Jr. and Richard D. DeBoest. Mr. Ball

represents himself and four other riparian land owners on the Orange River who are opposed to the application because of potential adverse effects on their property interests. Mr. DeBoest represents Mrs. Jan Brown and some 40 members of the "Eastern Lee County Improvement Association" who are concerned with the potential adverse impact on the quantity and quality of water in the Orange River, Hickey's Creek, the Caloosahatchee River up-stream of the Franklin Lock, the ground water table within or adjacent to the East County Water Control District (ECWCD), and the effect of lowering such water table upon the recharge of the sandstone acquifer in the area. Intervention was provisionally granted subject to submission of formal petitions for leave to intervene. A continuance of the hearing until March 29, 1976 was granted after presentation of evidence by the applicant. Petitions to intervene were thereafter filed and were granted, it appearing that sufficient facts in support thereof had been alleged.

FINDINGS OF FACT

1. The applicant, East County Water Control District, Lehigh Acres, Florida (ECWCD), was created in 1958 pursuant to statute, legislative act, and judicial decree as a drainage district for resources management and control. ECWCD has similar boundaries to those of the Lehigh Acres development near Fort Myers, Florida, which consists of some 65,000 acres, 1,200 of which are located in Hendry County, and the remainder in Lee County, Florida. The works sought to be constructed are set forth in Unit III of the ECWCD's Plan of Reclamation that was approved by the Circuit Court of Lee County on September 25, 1972. The Plan of Reclamation is intended to provide a system of water control for separate Unit No. 3, an area of almost 70 square miles in Lehigh Acres, to prevent flooding in that area and thus permit maximum beneficial use of land for development and other purposes. The Plan of Reclamation indicates that an auxiliary benefit would accrue in that the peak discharge into the lower Orange River would be lowered by a planned outfall canal system that will extend and adjoin existing canals with water control structures (Testimony of Gardner, Ward, Exhibit 11.)

   
   

2. In 1973, the ECWCD filed application with various state agencies to implement its Plan of Reclamation. In 1974, one of the agencies requested that a report be prepared on the effect of implementation of the plan on water resources. This was secured in May, 1975, and applications were refiled thereafter. On June 8, 1975, the ECWCD filed Application No. 20986 with the FCD requesting a surface water management permit to construct the works covered under its Plan of Reclamation and an additional water control structure (Testimony of Gardner, Ward, Composite Exhibit 1.)

   
   

3. The ECWCD consists of approximately 102 square miles located in the northeast portion of Lee County, south of the Caloosahatchee River, some 17 miles east of Fort Myers. The principal community located therein is Lehigh Acres with a current population of about 13,000. This developed area represents about 34 percent of the ECWCD. Unit No. 3 covers approximately 69 percent of the total distract land area. The primary receiving water body for the land area of the ECWCD is the Caloosahatchee River on the north boundary which in turn is one of the two major outlets of Lake Okeechobee for water control. The ECWCD contributes approximately 53 square miles of runoff into the Caloosahatchee River drainage basin. The remainder of 49 square miles of the ECWCD contributes runoff to the Orange River which enters the Caloosahatchee River approximately 8 miles downstream of the Franklin Lock and Dam. The ECWCD presently has some 175 miles of primary and secondary canals, several controllable culverts and one major water control structure, No. 1, on Hickey's Creek Canal. Internal stormwater routing is accomplished via swales and shallow

   waterways. The existing water management plan removes excess storm runoff from

   49 square miles via Sailfish and Able Canals (which are located within the district boundaries) to the Orange River. There are two other drainage basins, one being the Hickey's Creek Basin of 20 square miles drained by the Hickey's Creek Canal which in turn is fed by several smaller canals, and the second being the portion of Bedman's Creek Basin within the ECWCD of 14 square miles. The developed portion of the ECWCD is serviced by sewage collection and central treatment facilities. To date, there has been no shortage of domestic water in the ECWCD, which comes from underground sources. The three major canals serve as outfall canals as well as major interior collector canals. Severe flooding has occurred within the Orange River and the Hickey's Creek basin in the past, but has not been experienced in the past several years due to drought conditions (Exhibit 5.)

   
   

4. Under the present water control plan, the Able-Sailfish Canal basin discharges to the Orange River while the Hickey's Creek Canal basin discharges to the Caloosahatchee River. Under the proposed plan, both basins would discharge all runoff to the Orange River below 178 cubic feet per second which has been determined to be a safe limit for discharges into the Orange River to prevent flooding due to ECWCD discharges. Any runoff in excess of 178 cfs will go to the Caloosahatchee River (Exhibit 5.)

   
   

5. The proposed water control project consists of the following principal elements:

   
   

   1. A diversion waterway approximately 1 mile long will be constructed from Able Canal to Hickey's Creek Canal, with a portion of the latter canal to be enlarged.

      
      

   2. Existing Structure No. 1 will be enlarged and automated to accommodate additional flow to be diverted from Able Canal to Hickey's Creek Canal.

      
      

   3. Structure No. 2 to be located at the junction of Able and Sailfish Canal, equipped with automatic gates, will be constructed to maintain low flows into the Orange River and to divert the excess into the Caloosahatchee River via Hickey's Creek Canal.

      
      

   4. An outfall canal from the junction of Hickey's Creek and Hickey's Creek Canal to the Caloosahatchee River, approximately 3,000 feet in length, will be built to carry excess waters from the diversion to alleviate flooding in the lower regions in Hickey's Creek.

      
      

   5. Structure No. 3, a low level overflow type dam, will be constructed to require continuation of low volume discharges down Hickey's Creek with higher discharges (above 360 cubic feet per second) passing to the Caloosahatchee River via the Outfall Canal (Exhibit 5.)

      
      

6. The sandstone aquifer which underlies the water table aquifer in the ECWCD area will not be significantly affected by the proposed project. They are separate aquifers and do not show the same response to water level changes. During a heavy rainstorm, the water table aquifer rises to the surface. The source of recharge for the sandstone aquifer has not been definitely ascertained, but even if it is determined that recharge occurs in the ECWCD land area, it would not be detrimentally affected because the proposed works are designed to ensure that present water levels remain the same (Testimony of Winter.)

7. Concern over the possible loss of cypress trees and increased number of fires if the area known as Greenbriar Swamp is drained are premature because proposed horizontal canals bordering that area are not included in the project under consideration (Testimony of Long.)

   
   

8. The Orange River and Hickey's Creek Basins have experienced floods in the past. Various land owners who reside near the Orange River in the Buckingham area, which is adjacent to but not within the ECWCD, have experienced flooding of the Orange River in past years that has caused damage to their property and who consequently are in favor of the proposed project (Testimony of Pizzagalli, Hudson, Skates.) Other land owners are of an opposite view due to possible lowering of the water table in the Orange River and the Hickey's Creek areas (Testimony of Cantrell , Hartwell, Brown, Henry, Exhibit 7.)

   
   

9. Although testimony and documentary evidence was received at the hearing concerning the effect of the proposed works upon water quality, specific findings in this regard are not deemed necessary in view of the FCD staff recommendation that any granting of a surface water management permit be conditioned upon the ECWCD's pending application before the Department of Environmental Regulation for a Chapter 403 and 253 permit and water quality certification (Exhibit 5.)

   
   

   CONCLUSIONS OF LAW

   
   

10. The applicant seeks a construction permit under Section 373. 413, Florida Statutes. The procedural requirements of that provision have been met. Section 373.413(1) provides in pertinent part that ". . . The governing board. .

    . may require such permits and impose such reasonable conditions as are necessary to assure that the construction. . . of any. . . works will not be harmful to the water resources of the district."

    
    

11. The above broad statutory guideline is implemented by Chapter 16K-4, Florida Administrative Code. The procedural requirements of that Chapter have been met. Rule 16K-4.15 sets forth additional criteria for a permit as follows:

    
    

    "16K-4.15 Conditions for a permit.-

    1. In order to obtain a permit under this Chapter, an applicant must show that the requested act:

       1. will not be harmful to the water resources of the district; and

       2. will not interfere with the legal rights of others; and

       3. is not against public policy.

    2. The Board will consider the water quality and quantity impact and land use implications of the requested act."

    
    

12. The FCD staff has recommended that the requested permit be issued subject to conditions which may be summarized as follows:

1. That the proposed works be completed in their entirety.

   
   

2. That the operational settings of the control Structures No. 1 and No. 2 be modified to permit supplemental discharge of waters of suitable quality

   upstream of the Franklin Lock and Dam during appropriate low flow conditions in the Caloosahatchee River, at the request of the FCD.

   
   

3. That the order of construction shall be as follows: (1) Hickey's Creek Outfall Canal; (2) modifications to control structures No. 1 and 2; (3) enlargement of Hickey's Creek Canal; (4) tie Able and Hickey's Creek Canals together with diversion canal. All to be accomplished with discharges and stages following the existing water management criteria until Item 4 is completed.

   
   

4. That the Corps of Engineers will issue a permit for the outfall connection to the Caloosahatchee River.

   
   

5. That the FCD permit be contingent upon Department of Environmental Regulation certification that the project will not have adverse affects on water quality.

   
   

6. That a monitoring program jointly agreed to by the applicant, Department of Environmental Regulation and the FCD, will be continued following the necessary permit approvals. Parameters, locations, and frequencies will be determined subsequent to permit approvals.

1. By the above recommendations, the permitting agency staff has determined that the proposed works will not be harmful to the water resources of the District, will not interfere with the legal rights of others, and is not against public policy, except that the question of water quality is deferred pending action by the Department of Environmental Regulation.

   
   

2. The regulatory conditions for issuance of the requested permit are considered separately as follows:

   
   

   1. That the requested act will not be harmful to the water resources of the district.

      
      

      The applicant has shown by a preponderence of the evidence that the proposed works will serve a useful and beneficial purpose, i.e., the water control system will relieve flooding in the Orange River and Hickey's Creek Basin. The need for flood control in the area was attested to by land owners and expert witnesses based on past flood experience. It is significant that the works to be constructed will not divert normal flows, but only those which reach flood proportions. The evidence shows that the proposed project will provide adequate flood control for storms of a ten to twelve year frequency. It can thus be seen that the diversion of waters will occur only on infrequent occasions. There can be no question but that the prevention of flooding is an important and vital aspect of water management that promotes the health, safety and welfare of the public. Although one group of intervenors alleged in its petition that the plan would unreasonably affect property values of realty located outside the district, no evidence was adduced to support this contention. The fears of the other group of intervenors that the project might lower the water table and thus adversely affect the recharge of the sandstone aquifer in the area are considered unwarranted in view of the FCD staff testimony that the project will have no adverse effect on the aquifer if existing water levels are maintained as proposed by the applicant.

      
      

      1. That the requested act will not interfere with the legal rights of

         others.

         Although some testimony was presented by the intervenors as to the rights of property owners on the Orange River to have periodic floods be uninterrupted due to the alleged beneficial "flushing" affects, this question more properly will be addressed in considerations of water quality by the Department of Environmental Regulation. A contention of one intervenor who owns property bordering Hickey's Creek that the project will further lower and stagnate the waters in the Creek is not deemed significant because several expert witnesses, including one presented by the intervenors, testified that the effect of the proposed works on Hickey's Creek would be minimal.

         
         

      2. That the requested act is not against public policy.

      
      

      The public policy of the State concerning water resources is spelled out in Section 373.016(2) as follows:

      "(2) It is further declared to be the policy of the legislature:

      1. To provide for the management of water and related land resources;

      2. To promote the conservation, development and proper utilization of surface and ground water;

      3. To develop and regulate dams and impoundments, reservoirs, and other works and to provide water storage for beneficial purposes;

      4. To prevent damage from floods, soil erosion, and excessive drainage;

      5. To preserve natural resources, fish and wildlife;

      6. To promote recreational development, protect public lands, and assist in main- taining the navigability of rivers and har- bors; and

      7. Otherwise to promote the health, safety, and general welfare of the people of this state.

      
      

      Other than the policy expressed in Subsection 373.016(2)(e), which will be considered by the Department of Environmental Regulation, it is concluded that the proposed project will not contravene the state public policy based on the foregoing conclusions of law.

      
      

3. Accordingly, it is concluded that the requested permit should be granted subject to the conditions recommended by the flood control district staff which are reasonable and appropriate.

RECOMMENDATION

That applicant be granted a permit for construction of the facilities proposed in its Application No. 20986, subject to the conditions set forth in the Staff Report of the Central and Southern Florida Flood Control District.

Done and entered this 3rd day of May, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

John Wheeler, Esquire

P.O. Box V

West Palm Beach, Florida 33402

Thomas G. Pelham, Esquire

P.O. Box 1109 a 2302 Tallahassee, Florida 32302

Richard D. DeBoest, Esquire

P.O. Box 1480

Fort Myers, Florida 33902

Charles A. Ball, Jr., Esquire Route 1, Box 486

Ft. Myers, Florida

Madison F. Pacetti, Esquire

324 Royal Palm Way Palm Beach, Florida

Docket for Case No: 76-000456

Orders for Case No: 76-000456