STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DON BOYETT, THERLENE BOYETT, ) STANLEY OLIVER, MARIE OLIVER, ) RAYMOND OLIVER, HENRY A. NOBLES, ) JR., ROSEWITHA NOBLES, HENRY ) NOBLES, SR., BONNIE NOBLES, ) TERRY NELSON, and SUSAN NELSON, )
)
Petitioners, )
)
vs. ) CASE NO. 82-049
)
RESIDENTIAL COMMUNITIES OF ) AMERICA, INC., and STATE OF ) FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came on for hearing in Kissimmee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton II, on May 26, 1982. Petitioners Don Boyett, Therlene Boyett, Terry Nelson, Stanley Oliver, Raymond Oliver, and Henry A. Nobles, Jr., appeared on their own behalf. Nobody appeared on behalf of the other petitioners.
Respondents were represented by counsel:
APPEARANCES
For Residential A. Wayne Rich, Esquire Communities of Posts Office Box 1911 America, Inc., Orlando, Florida 32802
For Department Segundo J. Fernandez, Esquire of Environmental Jack Evans, Legal Intern Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
The issues in this case concern the scope of regulatory authority vested in the Department of Environmental Regulation (DER) in time of drought and include: Whether DER has dredge and fill jurisdiction in a dry lake bed on which upland plant species have become dominant where the return of water is reasonably anticipated? Whether DER should grant an exemption to Residential Communities of America, Inc. (RCA), from any requirement to obtain a stormwater runoff permit, where RCA proposes to wall off one end of the dry lake bed for a detention pond?
When DER proposed not to assert dredge and fill jurisdiction and to exempt RCA from having to secure a stormwater discharge permit, petitioners asked for a hearing pursuant to Section 120.57(1), Florida Statutes (1981).
FINDINGS OF FACT
RCA is developing 91 acres in a 219-acre basin near Ocoee in Orange County as a residential subdivision, Twin Lakes Forest. In an effort to attenuate the polluting effects of water draining from the subdivision into waters of the state, RCA has begun construction of an earthen dam or berm so as to cut off the south end of a lake bed, proposing to transform that part of the now almost dry lake into a "retention pond."
LAKE OR MEADOW?
The amount of water in Lake Meadow, the lake involved, fluctuates with the level of the groundwater. It has been as deep as 18 feet and, at other times, has nearly dried up completely. Like one-quarter of Orange County's 1,000 to 1,300 lakes, Lake Meadow rises and falls, comes and goes. With a few exceptions, such as Lake Alfreda and Crooked Lake, most intermittent lakes in the area are very small, one to five acres. A map prepared by a tax assessor's office on August 8, 1978, depicts Lake Meadow covering approximately 50 acres. Petitioner Boyett's Exhibit No. 1. In 1969, 1970, and 1972, Lake Meadow covered the full extent of what landowners in the area consider to be the lake bed, some
50 acres. Petitioner Boyett's Exhibits Nos. 3, 4, and 6. Two years ago a boy from Minnesota drowned in Lake Meadow. Today, the lake bed is mostly dry.
In the early 1960s, Lake Meadow attained its highest level in the last
30 years, covering substantially more than 50 acres, and spilling over to connect with Lake Kerr to the east. In July of 1978, Lake Meadow had disintegrated into at least seven discrete pools. Petitioner Boyett's Exhibit No. 4. The lake has been very low before, too, but the area is drier this year than at any time in the past 30 years. As recently as 1980, DER would have asserted dredge and fill jurisdiction over this project, according to DER's James Morgan.
Even under the driest conditions, there is water in the south end of the lake bed where Ms. Caflish caused a hole to be excavated so she would always have water for irrigating her orange groves. The water there is very cool, 10 feet below the surface. Whether a true spring is present was not established by the evidence. The paving and drainage facilities location plan prepared for RCA by its consulting engineers shows existing ponds within the Twin Lake Forest subdivision. There are two canals in the vicinity.
INTERMITTENT VEGETATION
There are no pine saplings in Lake Meadow's bed, but there are clumps of willow and willow fringes north of and downgrade from the berm. Dog fennels taller than a man were the predominant plant species in immediate proximity to the berm. Dog fennels spring up when lake beds go dry. Previously dominant vegetation like cattails and saw grass have retreated into dormancy and tubers. When water returns, these plants will emerge and again become dominant.
STORMWATER DETENTION
The berm is to be built to an elevation of 80 feet above sea level. The berm has a liner intended to prevent lateral seepage. The sand used to construct it has been compacted and is proposed to be seeded and mulched after cracks caused by recent rains are repaired and construction is completed. Eventually, the berm is to become the responsibility of the City of Ocoee.
Along an overflow weir with a height of only 78 feet above sea level, a skimmer would be installed to keep paper, oil, and other floatable debris out of the northern stretches of Lake Meadow. It would not be effective for that purpose if the lake's surface rises higher than 80 feet above sea level.
AN INCH AN ACRE
In deciding whether to exempt an applicant from stormwater discharge permitting requirements, 1/ DER uses this rule of thumb: A retention pond should be able to hold the same volume of water as the volume of a sheet of water one inch thick lying over the basin drained. Research has demonstrated that the initial flush of stormwater runoff is markedly more laden with pollutants than discharge that follows in the same storm. Only one in ten rainfalls exceeds one inch.
The retention pond planned for the south end of the lake bed would have an area of 8.25 acres. It is designed to hold some 18 acre feet, just in the part of the pond above 76 feet above sea level, almost one inch for each of the
219 acres in the basin, or more than two inches for each acre RCA proposes to develop. Water would be collected and conveyed by a pipe entering the pond with its top at 70 feet above sea level and its bottom at 65 feet above sea level. RCA owns the lake bed on either side of the proposed berm.
SUBMERGED BERM FORESEEN
If the pond will not drain, it will not provide adequate storage. If the level of the lake rises above the berm, there would be no retention of stormwater discharge in the pond. There will be no pond as such if Lake Meadow returns: the "retention pond" will be part of the lake. If past experience is a reliable guide, at some point in the next ten years, the lake can be expected to rise to 85.5 feet above sea level. (Testimony of Klos.)
PETITIONERS SUBSTANTIALLY INTERESTED
The respondents stipulated to petitioners' "standing." Petitioners own land adjacent to Lake Meadow and some of them have hunted birds and fished on Lake Meadow. Ducks, quail, and alligators have all been seen on or near the lake.
PROPOSED ORDER CONSIDERED
Respondent DER has submitted proposed findings of fact, proposed conclusions of law, and a proposed recommended order which have been considered in preparation of the foregoing findings of fact. Paragraphs 1 and 3 through 12, the first two sentences of paragraph 13, and the first sentence of paragraph
14 of DER's proposed findings of fact have been adopted, in substance, where relevant. Paragraph 2, the last sentence in paragraph 13, and the final two sentences of paragraph 14 of DER's proposed findings of fact have been rejected as unsupported by the evidence.
CONCLUSIONS OF LAW
Petitioner Boyett argues that DER's rules defining the landward extent of water of the state by plant indices, "might work very well during periods of normal rainfall, but fail in a period of sustained drought"; and that, given Lake Meadow's history of intermittency and DER's conceded jurisdiction only two years ago, "it is a lake qualifying as a water of the state now."
NO RULE CHALLENGE
The merits of petitioners' contention that Rules 17-4.02 and 17-4.28 do not comport with Chapter 403, Florida Statutes (1981) have not been reached, but without prejudice to petitioners' filing a rule challenge pursuant to Section 120.56, Florida Statutes (1981) or requesting DER to amend its rules pursuant to Section 120.54(5), Florida Statutes (1981), or pursuing the matter on appeal pursuant to State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977).
403 DREDGE AND FILL JURISDICTION
The court in Falls Chase Special Taxing District v. State of Florida Department of Environmental Regulation, No. 79-2348 (Fla. 2d Cir.; Nov. 26, 1979) app. pending sub nom. Department of Environmental Regulation v. Falls Chase Special Taxing District, No. 55-439 (Fla. 1st DCA; app. docketed Dec. 3, 1979), rebuffed DER's attempt to assert Chapter 403 regulatory jurisdiction all the way up to the ordinary high-water mark of Lake Lafayette in Leon County. In describing the extent of DER's Chapter 403 jurisdiction, the court said:
[L]eaving nothing to the unbridled discretion of the Department, the Legislature prescribes the method for determining the landward extent of State waters for regulatory purposes.
Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the State. The application of plant indicators to any areas shall be by dominant species. (Emphasis supplied) (Sec. 403.817(2), F.S.)
So determined is the Legislature that plant or soil indices shall be used to define the line up to which the State may regulate, the Department is admonished that, once included in the vegetation or soil index mandated to be established, the Department may neither add other species of aquatic plant life or soils to, nor delete species of plants or soils from
the indices without prior legislative approval. (Sec. 403.817(3), F.S.)
As if to emphasize that the landward boundary for regulatory purposes to be determined by the Department is different from the boundary historically utilized to separate public from private ownership, the Legislature provided that departmental rules adopted pursuant to this section shall have no significance when questions of sovereign ownership arise. (Sec. 403.817(5), F.S.)
Responding to legislative direction, the Department promulgated Rule 17-4.02, which includes both definitions and a vegetation index comprised of some 50 different species of aquatic plant life. Included among the
definitions are "submerged lands" (17-4.02(17), "uplands" (17-4.02(18), and "transitional zone of a submerged land" (17-4.02(19). . .
"Submerged land" is defined as "those lands covered by the categories of water listed in Sec. 17-4.28(2), Florida Administrative Code, including those lands contiguous to said waters where any of the following vegetational species, or any combination of such species, constitute the dominant plant community."
. . . [In Rule 17-4.02(17), Florida Administrative Code, may be found] a listing of the 50 different [submerged] species of aquatic plant life. . .[including cattails and saw grass.]
"Uplands" are "lands landward of submerged lands upon which the dominant plant community is composed of any vegetational species, [such as dog fennel] or combination of species, other than those listed under the definition of "submerged lands" and "transitional zone of a submerged land" herein. Falls Chase Special Taxing District v. State of Florida Department of Environmental Regulation, No. 79-2348 (Fla. 2d Cir.; Nov. 26, 1979) (amended order on motion for judgment on the pleadings, at 4 and 5).
The judgment entered by the trial court in the Falls Chase case has been automatically stayed pending review, by operation of law. Rule 9.310(b)(2), Fla.R.App.P.
DER has regulatory jurisdiction over natural lakes. In this connection, DER rules provide:
The department recognizes that the natural border of certain water bodies listed in this section may be difficult to establish because of seasonal fluctuation in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in Section 17-4.02(17) is to guide in the establishment of the border of the water bodies listed in this section. Rule
17-4.28(2)(d), Florida Administrative Code.
The "landward extent" of a lake for Chapter 403 regulatory purposes is "indicated by the presence of. . .[submerged or transitional plants] as the dominant species." Rule 17-4.02(17), Florida Administrative Code. DER rules define dominance as
the presence of a species or communities in greater numbers, biomass, or areal extent than competing species or communities, or a scientifically accepted tendency of species or communities to achieve such a status under existing or reasonably anticipated conditions. Rule 17-3.021(8), Florida Administrative Code. (Emphasis supplied.)
In the present case, the disputed part of the lake bed, where filling for the berm has already begun, has been temporarily overgrown with an upland plant that DER's own witness referred to as an "invader species." If water returns, the dominant dog fennel will be supplanted by saw grass and cattails, which will then predominate. The question becomes, therefore, whether water can reasonably be anticipated to refill Lake Meadow's lake bed. The evidence established that it is reasonable to anticipate that water will be lapping against the sides of the berm one day soon, and will immerse the berm in the foreseeable future.
Unlike the lake bed in the present case, the disputed part of the lake bed in the Falls Chase case "was drained when a geological fault or sink hole developed," at 167, and was "alleged to have been high and dry and used for farming and cattle raising for years. At 167.
STORMWATER DISCHARGE
A principal difference between granting a permit for stormwater discharge and exempting an applicant from permit requirements is that an exemption involves no monitoring. The evidence adduced in the present case suggested that monitoring would be appropriate, at a minimum.
Just as a party seeking a permit from DER has the burden to show entitlement, see Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981), so "the party seeking exemption from licensure under Rule 17-4.248, Florida Administrative Code, has the burden to show his entitlement to exemption." North Lakeland Citizens League, Inc. v. Sam Rodgers,
3 FALR 450-A, 451-A (Rec. Order adopted by DER on Jan 16, 1981).
In conclusions of law adopted by DER, application of the stormwater discharge rule was discussed:
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), F.A.C. If a stormwater discharge has "a significant [adverse] impact on water quality," licensure is a prerequisite to the discharge.
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), F.A.C., By implication, DER has recognized in Rule
17-4.248, F.A.C., 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.
North Lakeland Citizens League, Inc. v. Sam Rodgers, 3 FALR 450-A, 451-A (Rec. Order adopted by DER on Jan. 16, 1981)
Since the North Lakeland case, DER has adopted Chapter 17-25, Florida Administrative Code. Rule 17-25.03(2)(b), Florida Administrative Code exempts
facilities which provide retention, or detention with filtration, of the runoff from the first one inch of rainfall, or for projects or project subunits with drainage areas less than 100 acres, the first one half inch of runoff; . . .
The so-called retention pond proposed by the applicant is destined to be submerged in waters of the state in the near future. RCA did not meet its burden to show that pollutants that would then be discharged directly into waters of the state would not have "a significant impact on water quality." Rule 17-4.248(5)(c), Florida Administrative Code.
Upon consideration of the foregoing, it is RECOMMENDED:
That DER exercise dredge and fill jurisdiction over the berm site, pursuant to Rule 17-4.28, Florida Administrative Code.
That DER require RCA to apply for a license to discharge stormwater, pursuant to Chapter 17-25, Florida Administrative Code.
DONE AND ENTERED this 22nd day of June, 1982, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
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 22nd day of June, 1982.
ENDNOTE
1/ There is a second stormwater discharge system built by RCA that drains into another pond, and perhaps ultimately into Lake Meadow. DER's grant of an exemption for that system is not at issue in these proceedings.
COPIES FURNISHED:
A. Wayne Rich, Esquire Post Office Box 1911 Orlando, Florida 32802
Segundo J. Fernandez, Esquire Jack Evans, Legal Intern Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Don Boyett, Therlene Boyett, Stanley Oliver, Marie Oliver, Raymond Oliver, Henry A. Nobles, Jr., Rosewitha Nobles, Henry Nobles, Sr., Bonnie Nobles,
Terry Nelson, and Susan Nelson c/o Don Boyett
916-C Woodside Circle Kissimmee, Florida 32741
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
RESIDENTIAL COMMUNITIES NOT FINAL UNTIL TIME EXPIRES
OF AMERICA, INC., TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Appellant,
CASE NO. AP-143
vs. DOAH CASE NO. 82-049
STATE OF FLORIDA, DEPART- MENT OF ENVIRONMENTAL REGULATION, DON BOYETT,
THERLENE BOYETT, STANLEY OLIVER, MARIE OLIVER, RAYMOND OLIVER, HENRY A. NOBLES, JR., ROSEWITHA NOBLES, HENRY NOBLES, SR., BONNIE NOBLES, TERRY NELSON and SUSAN NELSON,
Appellees.
/ Opinion filed April 13, 1984
An appeal from an order of the State of Florida, Department of Environmental Regulation.
Thomas G. Pelham and J.D. Boone Kuersteiner of Akerman, Senterfioll & Eidson, Tallahassee, for appellant.
J. Alan Cox, Assistant General Counsel, Tallahassee, for appellee DER.
Filing briefs pro se: appellees Stanley Oliver, Orlando, and Don Boyett, Kissimmee.
Stephen W. Metz and Robert M. Rhodes of Messer, Rhodes & Vickers, Tallahassee, for amicus curiae Florida Home Builders Association.
PER CURIAM.
This case concerns the extent of DER's chapter 403 regulatory powers over a landowners dredge and fill activities, associated with upland development, in the historic bed of a lake gone partially or completely dry in recent years. In that respect this case is similar to recommended order proposed to DER an interpretation of the applicable statute and rules, in the circumstances shown by the record, that would sustain DER's regulatory responsibility in Lake Meadow. DER adopted the recommended order with inconsequential revisions.
The developer thus appeals, asserting four grounds for reversal, among them that DER's rule definition of the term "dominance," Rule 17-3.021(8), Fla.
Admin, Code, so expands the application of Rule 17-4.02(17), listing water- tolerant species that must be "dominant" for DER to have jurisdiction, section 403.817(2), Fla. Stat. (1981), that the rule is deprived of its authority in the statute. On this section 120.68 appeal the court may well consider such a rule- challenge and decide it, instead of remitting the parties to new rule-challenge proceedings before a DOAH hearing officer. State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977); 4245 Corp. v.
Division of Beverage, 348 So. 2d 934, 936 (Fla. 1st DCA 1977). But in this case we do not reach the rule-challenge, for assuming the rule's validity we still find no adequate record foundation here for DER's exposition, by the final order, of its site jurisdiction under the statute and various rules.
Encouraged by the hearing officer's recommended order, DER found that DER has regulatory powers at the berm site because, despite the surface dominance of dog fennel, numerous subterranean tubers of water-tolerant species, such as
cattails, are also found in the area. Thus, in light of Lake Meadow's history and its future prospects, DER finds in these subrerranean tubers of water- tolerant species, such as cattails, are also found in the area. Thus, in light of Lake Meadow's history and its future prospects, DER finds in these subterranean tubers a kind of "dominance" by water-tolerant vegetation that triggers DER's responsibility over dredge-and-fill in "the waters of the stat." We find that DER's order lacks the necessary evidentiary foundation for this reasoning. We therefore REVERSE DER's order
MANDATE
from
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable, Victoria J. Tschinkel
Secretary
WHEREAS, in that certain cause filed in this Court styled: DON BOYETT, et al.
vs.
RESIDENTIAL COMMUNITIES OF Case No. AP-143 AMERICA, INC. and STATE OF Your Case No. 82-049 FLORIDA, DEPARTMENT OF
ENVIRONMENTAL REGULATION
The attached opinion was rendered on April 13, 1984,
YOU ARE HEREBY COMMANDED that further proceeding be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Richard W. Ervin, III Chief Judge of the District court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 15th day of May, 1984.
Raymond E. Rhodes, Clerk
District Court of Appeal of Florida First District
================================================================= AGENCY FINAL ORDER
=================================================================
DIVISION OF ADMINISTRATIVE HEARINGS BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
DON BOYETT, et al.,
Petitioners,
Appellate Case No.: AP-143
DOAH Case No.: 82-049
RESIDENTIAL COMMUNITIES OF OGC File No.: 02-0007
AMERICA, INC. and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On September 20, 1982, the Department issued a Final Order adopting, except for minor modifications, the Hearing Officer's Recommended Order. The Final Order required Respondent, Residential Communities of America, Inc. ("RCA" hereafter), to file a dredge and fill permit application for work performed within the Lake Meadow basin. As a consequence, RCA appealed the Department's finding that it had jurisdiction to order RCA to seek authorization for its dredge and fill activities. On April 13, 1984, the First District Court of Appeal issued its Opinion reversing the Department and finding that the record lacked the necessary evidentiary foundation to establish that RCA's activities fell within the purview of the Department's dredge and fill jurisdiction. (Exhibit "A"). Having considered the Court's Mandate and being otherwise fully advised,
IT IS ORDERED as follows:
To the extent they are inconsistent, the Opinion of the Court will be substituted for the Department's September 20, 1982, Final Order. RCA is not required to submit an application for a dredge and fill permit for the construction of the stormwater retention facility at issue in this case.
The Petition for Hearing shall be DISMISSED and OGC File no. 82-0007 shall be closed.
DONE AND ORDERED this 24th day of May, 1984.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52(9), Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
5-25-84
DIANE NELSON Date
Clerk
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two true and correct copies of the foregoing FINAL ORDER have been furnished by United States Mail to Robert Benton, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida, 32301, and a true copy of the same to Thomas G. Pelham and
J. D. Boone Kuersteiner, Attorneys at Law, Post Office Box 1794, Tallahassee, Florida, 32302, Don Boyett, 916-C Woodside Circle, Kissimmee, Florida, 32741, Stanley Oliver, 120 North Mills Avenue, Orlando, Florida, 32803, Therelene Boyett, Marie Oliver, Raymond Oliver, Henry A. Nobles, Jr., Roswitha Nobles, Henry Nobles, Sr., Bonnie Nobles, Terry Nelson and Susan Nelson, c/o Don Boyett, 916-C Moodside Circle, Kissimmee, Florida, 32741, Robert at. Rhodes, Esquire and Stephen Metz, Esquire, Post Office Box 1794, Tallahassee, Florida, 32301, on this 25th day of May, 1984.
DENNIS R. ERDLEY
Assistant General Counsel STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
(904) 488-9730
Issue Date | Proceedings |
---|---|
Nov. 01, 1991 | Final Order filed. |
Jun. 22, 1982 | Recommended Order sent out. CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Apr. 13, 1994 | Opinion | |
May 24, 1984 | Agency Final Order | |
Jun. 22, 1982 | Recommended Order | Petitioner must apply for dredge/fill permit and license to discharge stormwater in the now-dry recurring lake on their developing property. |