STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONCERNED CITIZENS OF WEST )

ESCAMBIA COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1067

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) FAIRFIELD VILLAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on August 26, 1980, in Pensacola, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Artice L McGraw, Esquire

Cetti & McGraw

26 East Garden Street Pensacola, Florida 32501

P. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

For Respondent: William W. Deane, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent, Alan C. Sheppard, Esquire Fairfield Emmanuel, Sheppard & Condon Village: Seventh Floor, Century Bank Tower

Post Office Box 1271 Pensacola, Florida 32596

These proceedings began on June 6, 1980, when the Concerned Citizens of West Escambia County, Florida (Citizens) filed a petition requesting a hearing on the intention of Respondent, Department of Environmental Regulation (DER) to exempt Fairfield Village (FFV) from a storm water license for the construction of an additional storm water retention pond 90 feet long by 85 feet wide by 3 feet deep. On June 9, 1980, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

That hearing was held on August 26, 1980. Petitioner offered Exhibits 1-6 into evidence. Exhibits 1, 2, 3, 5 and 6 were so received. Respondent DER offered Exhibits A-D which were received into evidence. Respondent, FFV offered Exhibit A which was received into evidence.

FINDINGS OF FACT 1/

1. The Concerned Citizens of West Escambia County, Florida is a neighborhood association concerned about sewage and flood water problems in West Escambia County, including the LiFair subdivision which is to the south and west of the Fairfield Village project site. Several Citizens members reside in the LiFair subdivision. The land in both LiFair and the FFV site is low in elevation and has a high water table. As a result, drainage in the area is poor. After heavy rains there is considerable flooding in the LiFair area.

   
   

2. Only one member of the Petitioner organization was shown to use the waters of Bayou Marcus Creek or the Perdido Bay. These are the receiving state waters into which any storm water discharge from the FFV site will flow.

   
   

3. Bayou Marcus Creek and the Perdido Bay are classified pursuant to Chapter 17-3, Florida Administrative Code, by DER as Class III waters.

   
   

4. On January 22, 1980, Fairfield Village filed a notice of storm water discharge with DER. The notice stated:

   
   

   This letter concerns the storm water runoff from the southern portion of the site which you and I have previously discussed.

   
   

   Based upon a twenty-five year return frequency storm, the increase in runoff of the southern portion amounts to 1.8 C.F.S. which will be directed to the highway ditch along State Road 289-A (Fairfield Drive).

   This will then flow to the county drainage system along Crow Road to the low lying swamp areas, shown on the aerials. This low lying area appears to extend all the way to Perdido Bay. I would anticipate since this distance is so great with so much vegetation, etc., in between the discharge point and Perdido Bay that no nutrients from this source will be contributed to the bay system.

   
   

   Thank you for your consideration and approval in this matter.

   
   

5. DER responded on February 4, 1980, by indicating it determined the proposed discharge to not be significant under the terms of Section 17-4.248, Florida Administrative Code. No objection to the Notice of Discharge or DER's letter of insignificance was made by Petitioner.

   
   

6. Later, on April 8, 1980, FFV filed an additional Notice of Discharge with DER to include the addition of a storm water retention pond 90 feet long by

   85 feet wide by 3 feet deep. Again, DER on May 23, 1980, responded with a letter of insignificance.

7. On June 6, 1980, Petitioner filed a petition for a hearing to challenge the Department's last letter of insignificance exempting the retention pond from storm water licensing.

   
   

8. Fairfield Village is a multifamily housing project subsidized by the United Stated Department of Housing and Urban Development. It is planned for construction on a site to the immediate west of Fairfield Drive between the Lillian Highway (U.S. 98) and Jackson Street in Escambia County.

   
   

9. Storm water naturally flows off of the site in three directions: north, east and south. The north sheet flow ultimately empties into a Department of Transportation maintained ditch along the Lillian Highway. This ditch is approximately 600 feet north of the FFV site. The ditch then empties into Bayou Marcus Creek, a state water. The distance discharged water must flow from the site to Bayou Marcus Creek is approximately 600 feet north and then 2,000 feet to the west.

   
   

10. Most of the site runoff before and after completion of the proposed project is to the east and south where the discharge flows into a county maintained grassy ditch paralleling the west side of Fairfield Drive. This water than travels south until it discharges out the west side of the ditch into a 200 acre natural swamp. The thick vegetation of the swamp will filter the discharge of the Fairfield Village runoff before it travels some 4,000 feet to Bayou Marcus Creek.

    
    

11. The constituents in the discharge from the FFV site will be hydrocarbons, nutrients and sediments. These constituents will be filtered out to such an extent by the swamp and the grass drainage ditch that by the time the runoff reaches several hundred feet into the swamp their impact will not be measurable.

    
    

12. It is found that the impact of the storm water discharge from the Fairfield Village site after conclusion of the proposed project will have no significant impact on the receiving waters of the State of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (Supp. 1980) and Section 120.65, Florida Statutes (1979).

    
    

14. At the present, pursuant to its authority under Chapter 403, Florida Statutes, DER requires a license for only significant storm water discharges into waters of the state. Section 17-4.248, Florida Administrative Code. When a new storm water discharge is planned a person must give DER notice of that discharge. The notice shall state, "the location of the points of discharge into waters of the state, the volume and frequency of the discharges for which the installation is designed, and the anticipated constituents of the discharges." Only if the discharge is found by DER to have a "significant" impact on the waters of the state, will the owner of the discharge then be required to apply for a storm water permit. Section 17-4.248, Florida Administrative Code.

    
    

15. The issue here is whether the runoff from the FFV site will be significant. Before reaching that question however, the standing issue raised by FFV must be addressed. By its answer and during the hearing FFV has

    challenged the standing of the Citizens to bring this action. The evidence presented shows no particular interest of the Citizens in protecting the quality of state waters. In fact only one member of the Citizens testified that he used Perdido Bay and Bayou Marcus Creek for fishing and water skiing. He did not state that the proposed project, if allowed to discharge its storm waters, would in any way affect his use of those waters.

    
    

16. When its standing is challenged the Petitioner has the burden of establishing the requisite elements creating its standing. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1978). Standing has two constituent elements: to suffer an injury in fact and to show that the injury is within the zone of protected interests. Sierra Club

    v. Morton, 405 U.S. 727 (1972); Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1233 (Fla. 1st DCA 1978).

    
    

17. The zone of protected interest here is the quality of state waters. Chapter 403, Florida Statutes, and Section 17-4.248, Florida Administrative Code. Petitioner proved no interest in the state waters other than one member's incidental water skiing and fishing there. Even he presented no proof that his use of the water would in any way be affected by FFV's discharge (injury in fact). For these reasons it is concluded that Petitioner, Concerned Citizens of West Escambia County, Florida, has failed to prove its standing to bring this case. Jane E. Buchanan v. Orange County Department of Public Works, DOAH Case No. 80-1227 (Recommended Order September 24, 1980, Final Order November 12, 1980).

    
    

18. The preponderance of evidence here establishes that any storm water runoff from the FFV site reaching the receiving waters of Florida will have no measurable impact on water quality. This fact meets the test of being "insignificant" under Section 17-4.248, Florida Administrative Code, for a discharge license not being required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the State of Florida, Department of Environmental Regulation enter a final order finding that the proposed storm water discharge from the Fairfield Village site be determined to have no significant impact on the water quality of the state of Florida. It is further RECOMMENDED that the petition of the Concerned Citizens of West Escambia County, Florida, be dismissed for failure to establish by a preponderance of the evidence that its substantial interests will be adversely affected by the proposed discharge.

DONE AND ENTERED this 23rd day of December 1980 in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 23rd day of December 1980.

ENDNOTES

1/ These findings are not based on a transcript of the hearing. A transcript was not provided the Hearing Officer by any of the parties.

COPIES FURNISHED:

William W. Deane, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Artice L. McGraw, Esquire CETTI & McGRAW

26 East Garden Street Pensacola, Florida 32501

R. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

Alan C. Sheppard, Esquire EMMANUEL, SHEPPARD & CONDON

Seventh Floor, Century Bank Tower Post Office Box 1271

Pensacola, Florida 32596

Docket for Case No: 80-001067

Orders for Case No: 80-001067