STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WOOD, CAMPBELL, MILLER, et al., )

as affected property owners in ) the Big Lake-Lake Mitnik Area, )

)

Petitioner, )

)

vs. ) CASE NO. 80-961

) THE DELTONA CORPORATION and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on October 16, 1980, in the Council Chambers, City Hall, 400 South Orange Avenue, Orlando, Florida.

APPEARANCES

For Petitioners: W. C. Hutchison, Jr., Esquire

230 North Park Avenue Sanford, Florida 32771

For Respondent: E. Austin White, Esquire Deltona 718 Aledo Avenue

Coral Gables, Florida 33134

For Respondent: Charles G. Stephens, Esquire Department of Assistant General Counsel Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

ISSUES

This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208.

The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/

FINDINGS OF FACT

1. The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979.

   
   

2. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence.

   
   

3. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence.

   
   

4. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/

   
   

5. Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity.

   
   

6. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved.

7. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.

   
   

8. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

10. A review of the permitting process set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, leads to the conclusion that permit applications, while they should be reviewed by the State of Florida, Department of Environmental Regulation, with due regard for the immediate area adjacent to the project site, it does not allow for an application to be rejected premised upon possible non-compliance witch conditions that may be associated with a project undergoing evaluation. Therefore, the Department may not condition its approval of the application herein related to Permit No. 64-26478-4E upon the acceptability of the pending application in Department of Environmental Regulation File No.64-242118.

    
    

11. The Respondent, State of Florida, Department of Environmental Regulation, requested that the case be dismissed due to the alleged failure of the Petitioners to succeed in their claim that approval of the current project must be subject to a review and approval of the application, Department of Environmental Regulation's File No. 64-24208. The motion to dismiss is denied notwithstanding the conclusions that have been reached on this subject in paragraph two (2) of these Conclusions of Law. The Petitioners have expressed their agreement with the Department on the question of the necessity for monitoring the six-lake chain as opposed to the three-lake chain in determining the water quality, and therefore, have demonstrated sufficient standing for their participation in this action, there being no other challenge expressed to their standing.

12. Upon a review of the items of evidence admitted in the course of this hearing and the Findings of Fact and Conclusions of Law that have been reached heretofore, the Respondent, The Deltona Corporation, has given the necessary reasonable assurances for the grant of the Permit No. 64-26478-4E, subject to the conditions that remain in that permit. These conditions include the condition that the Respondent Deltona conduct water quality monitoring in the six lakes as spoken to as opposed to the three lakes. The additional monitoring is appropriate, in that it allows for a more comprehensive understanding of water quality matters and would give more advanced warning of water quality violations. It is, therefore:

RECOMMENDED:

That the Respondent, The Deltona Corporation, be allowed to go forward with the permit which it has been granted, No. 64-26478-4E, subject to the conditions as remain in that permit.

DONE AND ENTERED this 17th day of November, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of November, 1980.

ENDNOTES

1/ At one point during the permit application process, the Department had conditioned its grant of the permit in question upon the willingness of The Deltona Corporation to raise the invert of the culvert at Doyle Road between Lake Big and Jenkins Pond to the elevation of 24.4 feet mean sea level. The Department, with the concurrence of the other parties, has withdrawn that statement of condition as found in Joint Exhibit VIII admitted into evidence at page 3, line 4 of "Specific Conditions." Consequently, consideration of that potential dispute is not necessary.

2/ The details of the other project, Department File No. 64-24208, may be found as Petitioners' Exhibit No. 3, the file of the Department on that subject.

Generally speaking, that project entails the excavation of a water conveyance from lake Big to Lake Doyle.

COPIES FURNISHED:

W. C. Hutchison, Jr., Esquire

230 North Park Avenue Sanford, Florida 32771

Robert Schumakar, Esquire The Deltona Corporation

3250 South West Third Avenue Miami, Florida 33129

Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Jacob D. Varn, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-000961

Orders for Case No: 80-000961