STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT N. NIGG and FLORIDA ) STOP, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2916

) WINTER HAVEN HOUSING AUTHORITY ) AND STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was conducted in this matter on February 16 and 17, 1982, in Winter Haven, Florida. The following appearances were entered: Herbert N. Nigg, Winter Haven, Florida, appeared on behalf of the Petitioner, Florida STOP, Inc.; Julian Bennett and Jack T. Coyle, Winter Haven, Florida, appeared on behalf of the Applicant, Winter Haven Housing Authority; and Gordon Cherr, Tallahassee, Florida, appeared on behalf of the Respondent, Department of Environmental Regulation.

The Winter Haven Housing Authority filed an application with the Department of Environmental Regulation for a runoff permit, or an exemption from runoff permitting requirements, in connection with a low-income cluster housing project the Authority is developing. On November 3, 1981, the Department of Environmental Regulation issued an "intent to exempt" letter. Petitioner, Florida STOP, Inc., thereafter requested a formal administrative proceeding.

The matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated December 14, 1981.

At the hearing, the Winter Haven Housing Authority called the following witnesses: Dick Madaus, a registered civil engineer; and Dale Smith, the Public Works Director for the City of Winter Haven. The Department of Environmental Regulation called the following witnesses: Bill Kutash, the Supervisor of the Dredge and Fill Section in the Southwest District Office of the Department; and John Cox, a member of the technical staff of the Department's "208 Program."

The following witnesses testified on behalf of Petitioner: Danon Moxley, a fisheries biologist employed with the Florida Game and Fresh Water Fish Commission; Jeffrey F. Spence, an environmental planning coordinator employed with the Central Florida Regional Planning Council; Dale Smith; Marvin Hagman, the owner of a home located near to the project; Arnold T. Torgerson, a member of the Petitioner; Bill Kutash; Kenneth Kloss, a stormwater engineer employed in the St. Johns District Office of the Department of Environmental Regulation; John Howle, a registered civil engineer; Walter S. Wetterhall, a hydrologist who works as a private consultant; Herbert Nigg, a member and officer of Petitioner; and William Wright, a member and officer of the Petitioner. Exhibits of the Winter Haven Housing Authority, which have been designated "Applicant's

Exhibits", numbered 1 through 6; Department of Environmental Regulation Exhibits, which have been designated "DER Exhibits", numbered 1 through 6; and Petitioner's Exhibits 1, 3 through 6, and 8 through 16 were received into evidence. Petitioner's Exhibits 2 and 7 were offered into evidence and rejected. The parties were given an opportunity to file posthearing legal memoranda. Memoranda have been filed on behalf of the Petitioner and on behalf of the Department of Environmental Regulation . The memoranda include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are explicitly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

The issue in this proceeding is whether the runoff plan that has been proposed by the Winter Haven Housing Authority for its housing development is exempt from the Department of Environmental Regulation stormwater permit requirements; and, if it is not, whether a permit should be issued.

FINDINGS OF FACT

1. The Winter Haven Housing Authority is developing a low-income cluster housing project on approximately eleven acres of land near 26th Street in Winter Haven, Florida. The project is known as the "Lake Deer" project. A stormwater runoff system for the project has been designed. The project, including the stormwater runoff system, is presently under construction.

   
   

2. Petitioner is an incorporated association. Its members include several persons who live in close proximity to the Lake Deer project.

   
   

3. Prior to commencement of construction on the Lake Deer project site, stormwater runoff from approximately seven acres of the site drained into a system which terminated at Lake Howard. Runoff from the remainder of the site drained toward Lake Deer. The Housing Authority's original plans called for changing this drainage pattern so that the entire site would drain toward Lake Howard. This was reflected in the Authority's original application to the Department of Environmental Regulation. Since that time, the authority has made changes in its plan, and the stormwater drainage system as presently being developed would have characteristics more closely approximating those of the undeveloped condition of the project site.

   
   

4. The Authority's plan is to construct twelve "ponds" on the site. These ponds would be dry except during rainy times. Stormwater from the site would run into these ponds. The ponds would retain one inch of runoff from any storm event. If a storm event resulted in one inch or less of runoff, runoff from the project would accumulate in the ponds and percolate laterally and horizontally into the underlying groundwater. Only a very small amount of stormwater from the project would flow overland off the project site. A "swale" has been designed along the western border of the site. The swale has been divided so that the northern portion of it can carry runoff toward Lake Deer, and the southern portion can carry runoff toward Lake Howard. The swale would remain dry except during rainy times. The swale is connected with the ponds on the site through underground pipes. In the event that a given storm event resulted in more than one inch of runoff, water would flow from the ponds through the pipes to the swale. Water would only flow from the ponds to the swale when a storm event resulted in more than one inch of runoff. Runoff in excess of one inch from a given storm event would thus flow from the ponds to the swale, then to Lake Deer from the northern portion of the swale, or to Lake Howard from the

   southern portion. There was disputed testimony during the hearing as to whether the bottoms of the ponds and swale are above or below present groundwater levels in the area. The more credible evidence is that drainage systems already in effect in the area have lowered groundwater levels below the bottom levels of the ponds and swale so that the ponds and swale would be dry absent a storm event.

   
   

5. The soils underlying the Lake Deer project site are classified as "myakka sands." This is a common soil type in the southern portion of Florida. Myakka sands are typically regarded has having poor drainage characteristics. This is because the groundwater level is generally very close to the surface in the areas where myakka sands are found. In areas where the groundwater level is lower, such as at the Lake Deer project site, myakka sands have very good drainage characteristics. Water from the retention ponds on the Lake Deer project site should therefore percolate as they are designed to do. The ponds are designed to retain one inch of runoff from a storm event. The runoff coefficient on the site is 0.32. This means that for every inch of rain which falls on the site, only approximately one-third of an inch would contribute to runoff. The remainder would either evaporate or percolate into the soil and not become runoff. With this runoff coefficient, it would take a three-inch rainfall event to generate one inch of runoff. Therefore, water will not flow from the ponds to the swale system except after a three-inch rainfall event. Storms of this magnitude do occur, but they are relatively rare, having a ninety-nine percent chance of not occurring within any given year. Given geologic and hydrologic conditions in the area of the Lake Deer project site, the drainage system that has been designed for the site should function as designed.

   
   

6. The stormwater runoff system for the Lake Deer site will have no impact upon the water quality of receiving waters. Before it reaches either Lake Deer or Lake Howard, stormwater runoff from the site would travel overland across grassy areas into the retention ponds. Overland flow across grassy vegetation has the effect of removing substantial nutrients and pollutants from the runoff. Once the water is An the ponds, there is a "scouring" effect which results in further nutrient and pollutant uptake. Water would then flow from the ponds into the swale system. Flow through the swale system would have an additional purifying effect upon the waters due to additional scouring and nutrient uptake by vegetation in the swale. Given the facts that significant stormwater runoff will leave the Lake Deer site only after a storm event in excess of three inches, and that the runoff will have been subjected to overland flow, retention in ponds, and flow through a swale system, stormwater runoff from the Lake Deer site is not likely to be a source of pollutants for the receiving waters.

   
   

7. Runoff which leaves the Lake Deer site through the southern portion of the swale system will enter into a drainage ditch known as the "railroad ditch." The railroad ditch connects with Lake Howard through a culvert system. Due to the size of various culverts that occur along the railroad ditch, flooding occasionally occurs after heavy rainfall events. The drainage system proposed for the Lake Deer site will not exacerbate this flooding condition. No more water, and possibly less, will run off the site once the drainage system is completed than occurred in the predevelopment condition.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

9. At the time that the Winter Haven Housing Authority applied to the Department of Environmental Regulation for exemption from permitting requirements, or for a permit, the Department's rules respecting permitting of stormwater installations were set out at Chapter 17-4.248, Florida Administrative Code. Rule 17-4.248(6) provided:

   
   

   Except as provided under subsection (4) of this section, only existing discharges of stormwater which have been

   determined by the Department to be significant, as provided under paragraph (5)(c), shall be subject to the licensing requirements of the Department

   where the Department gives notice of the need to obtain a license to the owner of, or person responsible for, the points of discharge into waters of the State. . . . The determinations of

   significance shall be made on a case-by-case basis as provided under paragraph

   (c) of this subsection.

   
   

   The stormwater runoff system at the Lake Deer site is not significant. Given the fact that the proposed system will retain one inch of stormwater runoff, no more, and perhaps less, runoff will leave the site than occurs presently. The runoff system from the Lake Deer site is therefore exempt from the Department's permitting requirements because it is insignificant.

   
   

10. Department of Environmental Regulation Rule 17-4.248 (11) provides that the licensing requirements do not apply to discharges of stormwater into waters of the State through swales. The Lake Deer runoff system includes the use of such a swale system, and is therefore exempt from licensure requirements.

    
    

11. Reasonable assurance has been presented that the Lake Deer stormwater runoff system will not result in violations of water quality standards, and will have no deleterious impact upon receiving waters.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Environmental Regulation exempting the stormwater runoff system at the Winter Haven Housing Authority's Lake Deer site from the Department's stormwater runoff permitting requirements.

RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1982.

COPIES FURNISHED:

Mr. Herbert N. Nigg Florida STOP, Inc.

229 - 26th Street, Southwest Winter Haven, Florida 33880

Stephen C. Watson, Esquire Hahn, Breathitt, Roberts

& Watson, P.A.

Post Office Box 38

Lakeland, Florida 33802

J. Julian Bennett, Esquire Jack T. Coyle, Esquire

116 West Central Avenue Winter Haven, Florida 33880

Gordon D. Cherr, Esquire Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tshinkel Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002916

Orders for Case No: 81-002916