STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS, ) MARTIN COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1616

)

PAL-MAR WATER MANAGEMENT ) DISTRICT, and SOUTH FLORIDA ) WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings at 9:00 A.M., on February 6, 1978, in the City Commission Chambers, City Hall, 121 South Flagler Avenue, Stuart, Florida.

Petitioner was represented by John T. Carmody, Jr., Esquire, Martin County Attorney, Post Office Box 626, Stuart, Florida 33494; Respondent, Pal-Mar Water Management District, was represented by Madison F. Pacetti, Esquire, 324 Royal Palm Way, Palm Beach, Florida 33480, and Charles C. Chillingworth, Esquire, 230 Royal Palm Way, Palm Beach, Florida 33480; Respondent, South Florida Water Management District, was represented by John H. Wheeler, Esquire, Post Office Box V, West Palm Beach, Florida 33402.

Petitioner (hereafter Martin County) seeks a declaratory statement as to the applicability of Section 373.403(6), Florida Statutes, 1/ to the Pal-Mar Water Management District (hereafter Pal-Mar) plan to construct a drainage system, a major portion of which lies in Martin County, Florida. Pal-Mar contends that its proposed drainage system is a "closed system" as defined in the cited section of Florida Statutes, and, as such, is exempt from the permitting requirements of that chapter. Martin County and South Florida Water Management District (hereafter SFWMD) urge that the system is not "closed" because Pal-Mar does not "own or control" all the lands within which the system is to be located as required by the statutory definition.

FINDINGS OF FACT

1. Pal-Mar is a water management district operating pursuant to Chapter 298, Florida Statutes, in Martin and Palm Beach Counties, Florida. Pal-Mar has proposed to construct a drainage system serving approximately 22,500 acres of land of which approximately 18,000 acres are located in Martin County.

   
   

2. There are five (5) proposed phases of construction required to complete the drainage system. Four (4) of these phases, I, II, IV and V, are considered by Pal-Mar to constitute a closed system as defined in Section 373.403(6),

   Florida Statutes. There is no connection between phase III and the rest of the system.

   
   

3. During mid 1976, Pal-Mar filed an application with SFWMD for a surface water management permit for Pal-Mar's water management plan for phase III. It was stated therein that Pal-Mar considered phases I, II, IV and V to be a closed system and exempt from the permitting requirement of Part IV, Chapter 373, Florida Statutes.

   
   

4. At its regular monthly meeting of October 7, 1976, the governing board of SFWMD considered the status of phases I, II, IV and V of the Pal-Mar plan. A motion to declare phases I, II, IV and V not a closed system failed. No other motion was made concerning the system.

   
   

5. At its annual landowners meeting of June 16, 1977, the president of Pal-Mar's Board of Supervisors indicated that Pal-Mar had received a "tentative declaration" that phases I, II, IV and V constitute a closed system.

   
   

6. On September 2, 1977, Martin County initiated the instant proceeding.

   
   

7. Phases I, II and V of the propose drainage system are separated from phase IV by State Road 711. The section of State Road 711 in Martin County is maintained by Martin County and Martin County owns a 200 foot easement for the State road. The southern portion of State Road 711 within the drainage system runs through Palm Beach County.

   
   

8. The Jupiter Grade Road passes through the center of the proposed drainage system's reservoir in an east/west direction. Litigation is presently pending between Pal-Mar and Martin County as to the ownership of the Jupiter Grade Road.

   
   

9. Pal-Mar has acquired no easements or other legal use of the Jupiter Grade Road from Martin County nor has Pal-Mar obtained from Martin County any form of easement or license to cross State Road 711 for purposes of implementing the drainage system. As part of its plan, Pal-Mar intends to acquire from either Martin County or Palm Beach County such control of or access to State Roads 711 and its appurtenant easement as is necessary to implement the drainage system plan.

   
   

10. As to the Jupiter Grade, Pal-Mar intends to either provide a two part reservoir with containment levees to protect the Jupiter Grade, to seek requisite ownership or control of the Jupiter Grade from Martin County or to voluntarily relocate the Jupiter Grade as part of its proposed project.

    
    

11. Finally, the project will require a joint levee east of phase IV, 500 feet north of State Road 706. Pal-Mar intends as part of its plan to obtain necessary easements for construction of the joint levee.

    
    

12. The proposed system requires no water for filling, replenishing and maintaining its water level and indeed requires no water at all.

    
    

    CONCLUSIONS OF LAW

13. "Closed system" is defined in Section 373.403(6), Florida Statutes: "Closed system" means any reservoir or works

    located entirely within lands owned or

    controlled by the user and which requires water only for the filling, replenishing and maintaining the water level thereof.

    
    

14. Both Martin County and SFWMD urge that Pal-Mar does not meet the statutory definition because Pal-Mar does not presently own or control all of the lands necessary to implement the drainage system. But this argument misses the mark. The issue is whether the statutory definition applies to the plan itself rather than to its present status of implementation. Whether a departure from the plan at a later date renders the installed drainage system one that is not "closed" is a question that should properly be visited at that time.

    
    

15. As proposed, Pal-Mar's plan anticipates that Pal-Mar will ultimately own or control all of the land necessary to implement the drainage system. In its plan, it seeks to acquire necessary control of State Road 711 and the Jupiter Grade Road as well as the easement necessary for the joint levee, therefore, once the plan is implemented, Pal-Mar will own or control all the lands within which the system is located.

    
    

16. Respondents do not contend that Pal-Mar's drainage system does not meet the remaining element of the definition by requiring water beyond that required for filling, replenishing and maintaining the water level. In fact, the system requires no water at all. Accordingly, Pal-Mar's proposed drainage system meets the statutory definition of "closed system" contained in Section 373.403(6), Florida Statutes.

    
    

    RECOMMENDATION

    
    

    For the foregoing reasons, it is recommended that South Florida Water Management District enter its declaratory statement declaring that the Pal-Mar Water Management District plan is a closed system as that term is defined in Section 373.403(6), Florida Statutes.

    
    

    DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida.

    
    

    MICHAEL R. N. McDONNELL

    Hearing Officer

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

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1978.

    
    

    ENDNOTE

    
    

    1/ Although Martin County sought a determination of the applicability of Chapter 16K-4, F.A.C., it introduced no evidence and made no argument as to the issue.

    APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 78-312

    
    

    In accordance with the requirements of the decision in Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), the rulings on proposed findings of fact submitted by the parties, along with the grounds for rejection are set forth below.

    
    

    Proposed findings of fact were not submitted by Respondent Pal-Mar.

    
    

    PETITIONER'S PROPOSED FINDINGS OF FACT:

    
    

    A.

    1. Adopted in substance.

    2. Adopted in substance.

    3. Adopted in substance.

    4. Adopted in substance.

    5. Adopted in substance.

    6. Adopted in substance.

    7. Adopted in substance.

    8. Adopted in substance.

B.

1. Adopted in substance.

2. Adopted in substance.

RESPONDENT SFWMD'S PROPOSED FINDINGS OF FACT:

A.

1. Adopted in substance.

2. Adopted in substance.

3. Adopted in part, otherwise rejected as irrelevant.

4. Adopted in part, otherwise rejected as irrelevant.

5. Rejected as irrelevant.

6. Rejected as irrelevant.

7. Adopted in substance.

8. Adopted in substance.

9. Adopted in substance.

10. Rejected as irrelevant.

11. Adopted in part, otherwise rejected as irrelevant.

12. Adopted in substance.

13. Adopted in substance.

14. Adopted in substance.

15. Rejected as irrelevant.

16. Rejected as irrelevant.

17. Rejected as irrelevant.

18. Rejected as irrelevant.

    B.

    1. Rejected, unsupported by competent, direct evidence.

    2. Adopted in substance.

    3. Adopted in substance.

    4. Rejected as irrelevant.

    5. (Not a proposed finding of fact.)

    6. (Not a proposed finding of fact.)

COPIES FURNISHED:

John T. Carmody, Jr., Esquire Martin County Attorney

Post Office Box 626 Stuart, Florida 33494

Madison F. Pacetti, Esquire

324 Royal Palm Way

Palm Beach, Florida 33480

Charles C. Chillingworth, Esquire

230 Royal Palm Way

Palm Beach, Florida 33480

John H. Wheeler, Esquire Post Office Box V

West Palm Beach, Florida 33402

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

AGENCY FINAL ORDER

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

BEFORE THE GOVERNING BOARD OF SOUTH FLORIDA WATER MANAGEMENT DISTRICT

BOARD OF COUNTY COMMISSIONERS OF MARTIN COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 77-1616

ORDER NO. 78-4 GRANTING

PAL-MAR WATER MANAGEMENT DECLARATORY STATEMENT DISTRICT and SOUTH FLORIDA

WATER MANAGEMENT DISTRICT

Respondents.

/

FINAL ORDER

The Hearing Officer's Recommended Order came to be heard before the Governing Board of the South Florida Water Management District on the 13th day of April, 1978. After consideration of the matter the Governing Board adopts the Hearing Officer's Findings of Fact as its own.

CONCLUSIONS OF LAW

The Governing Board rejects the Hearing Officer's Conclusions of Law and adopts the following Conclusions of Law:

1. "Closed system" is defined in Section 373.403(6), Florida Statutes, as follows:

   
   

   "Closed system" means any reservoir or works located entirely within lands owned or controlled by the user and which requires water only for the filling, replenishing, and maintaining the water level thereof.

   
   

2. PAL-MAR WATER MANAGEMENT DISTRICT does not presently own or control all lands necessary to effectuate its proposed plan, therefore, the proposed drainage system fails to meet the statutory definition of a closed system contained in Section 373.403(6), Florida Statutes.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, the Governing Board of the SOUTH FLORIDA WATER MANAGEMENT DISTRICT hereby declares that Phases I, II, IV and V are not a closed system and therefore are not exempt from the rules of the District and provisions of Chapter 373, Florida Statutes.

DONE and ORDERED at a public meeting held in West Palm Beach, Florida, the 13th day of April, 1978.

SOUTH FLORIDA WATER MANAGEMENT

(Corporate Seal) DISTRICT, BY ITS GOVERNING BOARD

ATTEST:

By

Secretary

By

Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Order has been furnished Michael R. N. McDonnell, Hearing Office, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304; John T. Carmody, Jr., Esquire, Martin County Attorney, Post Office Box 626, Stuart, Florida 33494; and Madison

F. Pacetti, Esquire, Post Office Box 2775, Palm Beach, Florida 33480, by mail, this 14th day of April, 1978.

THOMAS E. HUSER, Assistant Secretary to the Governing Board

Docket for Case No: 77-001616

Orders for Case No: 77-001616