STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTH LAKELAND CITIZENS LEAGUE, ) INC., FLOY SAWYER, FORREST ) SAWYER, CHARLES C. KRUG, DOROTHY ) and RUBIN THOMPSON, and JAMES N. ) POLLOCK, JR., et al., )

)

Petitioners, )

)

vs. ) CASE NO. 80-1732

) SAM ROGERS and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents, )

)

RECOMMENDED ORDER

This matter came on for hearing in Lakeland, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 18, 1980. At the time set for final hearing, the Department of Environmental Regulation (DER) moved ore tenus to dismiss the petition for final hearing. The motion was granted, with leave to file an amended petition. After a short recess, counsel for petitioners, Mr. and Mrs. Forrest Sawyer, Charles C. Krug, James N. Pollock, Jr., and Dorothy and Rubin Thompson did file an amended Paragraph (2)(f). DER then renewed its motion to dismiss. Except as to the named petitioners, the motion was granted. The parties were represented by counsel:

APPEARANCES

For Petitioners: Andrew R. Reilly, Esquire

Post Office Box 2039

Haines City, Florida 33844

For Respondent: Walter R. Mattson, Esquire Rodgers 1240 East Lime Street

Lakeland, Florida 33801

For Respondent: David M. Levin, Esquire Department of 2600 Blair Stone Road Environmental Tallahassee, Florida 32301 Regulation

ISSUES

The issue in this case is whether the DER should exempt the stormwater discharge anticipated from the initial phase of a residential development proposed by Sam Rodgers from the licensing requirements laid down by Rule 17- 4.248, Florida Administrative Code.

FINDINGS OF FACT

1. Sam Rodgers (applicant) proposes to alter an existing stormwater conveyance system in connection with transforming part of an orange grove in Polk County into a residential development, Foxwood Lake Estates. If all goes according to plan, the development will eventually occupy all or parts of four distinct basins. The applicant's agents furnished DER data pertaining to all four basins. The only discharge at issue in these proceedings, however, is the stormwater expected to drain from Basin III. See DER Exhibit No. 1, Master Plan-Key Map. Phase I of the development, a trailer park, would lie completely within the 123-acre expanse of Basin III, but would not completely displace the citrus trees.

   
   

2. According to the applicant, roofs, streets, parking lots and other impervious surfaces will comprise some two-fifths of the area, when developed. DER Exhibit No. 1. Construction activity increases suspended solids in stormwater draining from construction sites. Lesser but still elevated levels of suspended solids can be expected when people take up residence. Heavy metals from automobile exhaust will end up in stormwater draining from Basin III, if some of the people moving in bring cars. Residential development also increases the biochemical oxygen demand of stormwater washing over it.

   
   

3. The applicant proposes sodded roadside swales of varying slope to collect stormwater and, together with occasional pipes under roads, to convey it to an existing pond (Foxwood Lake), which is to be enlarged to an area of 4.82 acres. Foxwood Lake would be 12 feet deep in places. Testimony that the swales and pond would fill with silt in two or three years has not been credited, although it may not take centuries, as another expert testified. The swales will require maintenance and the applicant plans to hire somebody for that purpose. The applicant also contemplates dedicating some road rights-of-way, including swales, to Polk County.

   
   

4. Lake Foxwood's present surface elevation of 160.58 feet above mean sea level would remain virtually unchanged, during times of moderate rainfall, at

   161 feet above mean sea level. Neither groundwater tables nor the soil's storage capacity would be perceptibly altered, even during periods when the lake was temporarily elevated by the control structure planned for it.

   
   

5. The applicant has agreed to a design that would detain on his property a volume of water equal to one inch of rainfall over the whole of Basin III for five to seven days. At the western end of Foxwood Lake, a PVC overflow pipe with a diameter of six inches would be installed in a concrete outfall structure at an elevation of 161 feet above mean sea level. At 164.55 feet above mean sea level, a vertical V-notch in the weir would allow water to spill out of Foxwood Lake, if stormwater should raise the lake's surface to that elevation. Both the overflow pipe and the V-notch would empty through a pipe 36 inches across into an intermittent tributary to Blackwater Creek, which the parties stipulated to be Class III waters.

   
   

6. The stream into which water leaving Foxwood Lake would flow meanders west to Martin Lake, about a mile away. James M. Pollock, Jr., owns property on the western edge of Martin Lake and farms land on the lake's edge.

   
   

7. Mr. Forrest Sawyer of 1712 Gibsonia-Galloway Road owns land to the north of Mr. Rodgers' property. Mr. Sawyer's property is generally higher ground than the Rodgers property, although three or four acres of the Sawyer

   property lie in a low area into which drain water from the Rodgers property as well as water from elsewhere on the Sawyer property. No water drains onto the Sawyer property from Basin III, however.

   
   

8. Charles C. Krug, his sister, and his brother together own 40 acres abutting the west side of the northwest 40 acres of the Rodgers property. A dike along the southern boundary of the Krug property prevents water entering from the south. No water has drained onto the Krug property from the Rodgers property in the last 45 years.

   
   

9. Dorothy Thompson lives 300 or 400 feet east of Orange Avenue which is the eastern boundary of the Rodgers property. There is a small area east of Orange Avenue in Basin III which drains west through three culverts onto the Rodgers property. The Thompson home property evidently drains to the east; however, only since the widening of U.S. Highway 98, which runs north and south to the east of Mrs. Thompson's property have heavy rains resulted in flooding on her property.

   
   

10. The applicant gave DER notice of the changes in stormwater discharge proposed for Basin III. Water discharged from the system the applicant proposes would meet the criteria for Class III waters, according to the uncontroverted evidence. Virtually all pollutants except colloidal solids should precipitate or be filtered out by the time water leaves Foxwood Lake for waters of the state. Respondent's witness' suggestion that the swales be paved to decrease the siltation overlooks the filtration and percolation grassy swales make possible.

    
    

11. At one time DER required that developers design stormwater systems to detain, instead of a one-inch storm, the mean annual storm, for five to seven days.

    
    

12. The applicant's system is designed to avoid any increase in the present rate of discharge under weather conditions up to and including a 100 year 24-hour storm.

    
    

    CONCLUSIONS OF LAW

    
    

13. Of all the named petitioners, only James M. Pollock, Jr., proved that his substantial interests could be affected by the quality of water outfalling from Lake Foxwood. The demand of this one petitioner for formal hearing requires that the DER's determinations, contemplated by Rule 17-4.248, Florida Administrative Code, be made only after an evidentiary hearing conducted in conformity with Chapter 120, Florida Statutes (1979). At this hearing, the party seeking exemption from licensure under Rule 17-4.248, Florida Administrative Code, has the burden to show his entitlement to exemption.

    
    

14. DER exempts or licenses stormwater discharges "on a case-by-case basis taking into account. . .location, volume and frequency, and. . .constituents of the discharge for their probable impacts on the quality and designated uses of the receiving waters of the State." Rule 17-4.248(5)(c), Florida Administrative Code. If a stormwater discharge has "a significant [adverse] impact on water quality," licensure is a prerequisite to the discharge.

    
    

15. The rule announces an intention "to promulgate more specific stormwater management provisions by rule," as "new or better information. .

.develops." Rule 17-4.248(3), Florida Administrative Code. By implication, DER has recognized in Rule 17-4.248, Florida Administrative Code, the imprecision of

its "significant" standard. For the time being, DER is working its way through the problem on a case-by-case basis, reserving, as it is entitled to do, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), promulgation of rules enunciating more precise standards for a later date. The weight of the evidence in the present case amounted to reasonable assurances that stormwater discharged from Lake Foxwood would contain less pollutants than the maximum allowed for the Class III waters into which the outfall would spill. Since discharge of this relative purity could not cause a violation of Class III standards, it can properly be denominated "insignificant" within the meaning of Rule 17-4.248, Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That DER grant Sam Rodgers' application for exemption from stormwater discharge licensure for Phase I of the proposed Foxwood Lake Estates.

DONE AND ENTERED this 8th day of December, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Telephone: (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980

COPIES FURNISHED:

Andrew Reilly, Esquire Post Office Box 2039

Haines City, Florida 33844

Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801

David Levin, Esquire 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 80-001732

Orders for Case No: 80-001732