Judges: R. T. CARPENTER
Agency: Water Management Districts
Latest Update: Jun. 21, 1991
Summary: Petitioner's application for surface water management permit denied for failure to abide by the statutory and rule guidelines.
82-1639STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STRAZZULLA BROTHERS, INC., )
)
Petitioner, )
and )
)
ACME IMPROVEMENT DISTRICT, )
)
Intervenor, )
)
vs. ) CASE NO. 82-1639
) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )
)
Respondent, )
and )
)
FLORIDA AUDUBON SOCIETY, )
)
Intervenor. )
)
RECOMMENDED ORDER
This matter came on for hearing on August 22 and 23, 1983, in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
APPEARANCES
For Petitioner Strazzulla: John S. Wilbur, Jr., Esquire Brothers, Inc. and Acme Post Office Box 2775 Improvement District Palm Beach, Florida 33480-2775
For Respondent South: Irene Kennedy Quincey, Esquire Florida Water Management Post Office Box "V"
District West Palm Beach, Florida 33402
For Intervenor Florida: Mr. Charles Lee Audobon Society 1101 Audubon Way
Maitland, Florida 32751
This case arose on Petitioner's application for surface water management and right-of-way occupancy permits, and Respondent's notice of intent to deny. The application involves a parcel consisting of approximately 1,393 acres in Palm Beach County (hereafter referred to as "the property").
The property and its proposed agricultural development have been the subject of various administrative proceedings dating back to 1977. Through this process and by stipulations, the water quality issue has been resolved and the request for use of Respondent's right-of-way has been dropped. The application
for the dredge and fill permit from the Department of Environmental Regulation has been approved, subject to approval by Respondent. The land is zoned for agricultural use by Palm Beach County, and approval is being sought from the Army Corps of Engineers.
The parties submitted proposed findings of fact and conclusion of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
FINDINGS OF FACT
The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased
487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application.
The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation.
The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property.
The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area.
On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system.
The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use.
Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months.
The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species.
The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands.
The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
CONCLUSIONS OF LAW
In order to obtain a surface water management permit, an applicant is required to meet the conditions set out at SFWMD Rule 40E-4.301, Florida Administrative Code. The rule provides:
In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system:
provides adequate flood protection and drainage,
will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to chapter 373, Florida Statutes,
will not cause discharges which result in any violation, in surface waters of the state, of the standards and criteria of chapter 17-3,
will not cause adverse impacts on surface and groundwater levels and flows,
will not cause adverse environmental impacts,
can be effectively operated and maintained,
will not adversely affect public health and safety,
is consistent with the requirements of other public agencies,
is, in the opinion of the the most publicly acceptable alternative available,
will serve a proposed land sue which:
for conceptual approvals, is compatible with the local government comprehensive plan or is compatible with the existing zoning for the area,
for construction and operation permits, is compatible with the existing zoning for the area,
meets any applicable basin criteria in chapter 40E-41,
will not otherwise be harmful to the water resources of the District, and will not interfere with the legal rights of others as defined in rule 17-40.07,
is not against public policy, and
will meet the general and specific criteria in the document described in paragraph 40E-4.091(1)(a). (emphasis added)
SFWMD has adopted criteria for determining water quantity impacts of a proposed system in a document entitled "Basis of Review for Surface Water Management Permit Applications Within the South Florida Water Management District - December, 1982." See Rule 40E-4.091(1)(a), Florida Administrative Code.
Paragraph 3.1.5.5 of the Basis of Review sets forth the environmental criteria as:
Environmental features directly related to the water resources of the District, such as:
Wetlands habitat except those previously impacted by drainage, land clearing, earthwork, or those which have been invaded by exotic species and are in a state of environmental decay.
Natural waterbodies.
Environmental features which may be indirectly related to the water resources of the District, such as:
Intermittent ponds.
Significant habitat diversity support systems, usually consisting of highly productive mixed upland and wetland systems with appropriate buffer areas.
Environmental features which are not related to the water resources of the District, such as:
Unique upland habitats, usually consisting of tropical hardwood tree hammocks and beach dunes.
Preferred habitat for rare or endangered
species of plants or animals will be identified. (emphasis added)
The property at issue here contains the wetlands habitat described above. These wetlands will be destroyed if the property is developed as proposed. Thus, the applicant here has failed the give the required "reasonable assurances that the [proposed] surface water management system . . . will not cause adverse environmental impacts . . . [or] will not otherwise be harmful to the water resources of the District. . .
The above rules which are the principal basis for denial of the application are promulgated pursuant to Section 373.044, Florida Statutes (1981). Thus, the exemptions to Chapter 373, set forth in Section 373.406, Florida Statutes (1982), if any are applicable, would require that the above discussed objections be set aside. This section provides in part:
Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters.
Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees.
The exemption set forth in subparagraph (2) allows a person engaged in agriculture to alter the topography of his land so long as the primary purpose is not water impoundment or obstruction. Here, that is the primary purpose of the project and the exemption is therefore not applicable. Petitioner argues that the sole purpose of the alteration is to convert the property into agricultural production. However, this argument begs the question since this statutory exemption assumes, as its point of departure, an ultimate agricultural purpose.
The exemption set forth in subparagraph (3) is also inapplicable since the proposed water management system does not meet the statutory definition of a "closed system," which is defined in Subsection 373.403(6), Florid Statutes (1982 Supp), as follows:
"Closed system" means any reservoir or works located entirely within agricultural lands owned or controlled by the user and which requires water only for the filling, replenishing, and maintaining the water level thereof. 1/
Petitioner correctly identifies Acme as the "user" of the water management system at issue here. Petitioner's reservoir and pumping facilities will become a part of the Acme system and will be operated by Acme. Petitioner is likewise correct that the exemption is not defeated because of periodic water discharges, since this feature is not prohibited in defining a "closed system."
However, the reservoir and works will not be "located entirely within agricultural lands" as required by the exemption. Rather, the lands, while predominantly agricultural, contain other uses (e.g. T.V. antenna facility) and are thus mixed rather than agricultural. Further, since these lands are not currently "owned or controlled by the user," the exemption does not apply. See, Pal-Mar Water Mgt. v. Board of County Commissioners, 384 So.2d 232 (Fla. 4th DCA 1980).
Petitioner argues that its purchase of the land from the State of Florida precludes denial of its proposed use. However, there was no showing that this transaction included any representation upon which Petitioner could have relied. As stated by the Court in Special Disability Trust Fund v. Master Distributors, 418 So.2d 1124, 1125 (Fla. 1st DCA 1982):
In order to raise an estoppel against the state there must be (1) a representation by the party estopped to the party claiming the estoppel as to some material fact, (2) a reliance upon the representation by the party claiming estoppel, and (3) a change in such party's position caused by his reliance upon the representation to his detriment.
Petitioner's argument of res judicata must likewise be rejected. Although it is unfortunate that permits must be obtained from a multiplicity of agencies, there is no authority to preclude Respondent from exercising its statutory jurisdiction under Chapter 373, Florida Statutes, and rules promulgated thereunder. It should be noted that Rule 17-1.04 (8)(a), Florida Administrative Code, delegates responsibility from DER to SFWMD for surface water management permitting pursuant to Part IV, Chapter 373, Florida Statutes.
RECOMMENDATION
From the foregoing, it is RECOMMENDED:
That Respondent enter a final order denying the application.
DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida.
R. T. CARPENTER 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 30th day of November, 1983.
ENDNOTE
1/ Further applicable definitions contained in Section 373.403, Florida Statutes (1982 Supp), are as follows:
"Reservoir" means any artificial or natural holding area which contains or will contain the water impounded by a dam.
"Works" means all artificial structures, including, but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed in or across
the waters in the state.
COPIES FURNISHED:
John S. Wilbur, Jr., Esquire Post Office Box 2775
Palm Beach, Florida 33480-2775
Irene Kennedy Quincey, Esquire Post Office Box "V"
West Palm Beach, Florida 33402
Mr. Charles Lee 1101 Audubon Way
Maitland, Florida 32751
John R. Maloy, Executive Director
South Florida Water Management District Post Office Box "V"
West Palm Beach, Florida 33402
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STRAZZULLA BROTHERS, INC.,
Petitioner,
and
ACME IMPROVEMENT DISTRICT,
Intervenor,
vs. DOAH Case No. 82-1639
ORDER NO. 84-09
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondent,
and
FLORIDA AUDUBON SOCIETY,
Intervenor.
/
ORDER
The Hearing Officer's Recommended Order came to be heard before the Governing Board of the South Florida Water Management District on the 12th day of January, 1984. In addition, the following pleadings were considered by the Governing Board: Petitioner's "Motion for Reconsideration and/or Remand for Further Proceedings Pursuant to Florida Statutes 120.57" and "Stipulation" both filed on December 14, 1983; Respondent's "Reply to Motion for Reconsideration and Stipulation filed by Petitioner Strazzulla Brothers, Inc." filed December 23, 1983; Intervenor Florida Audubon Society's "Motion to Strike" filed December 16, 1983; "Exceptions to Hearing Officer's Recommended Order" filed by Petitioner Strazzulla Brothers, Inc., on December 16, 1983; "Exceptions to Recommended Order" filed by Respondent South Florida Water Management District on December 14, 1983; and "Exceptions of Intervenor Florida Audubon Society" filed December 16,1983.
The Governing Board has considered the above matter and heard from counsel for all parties. Because the exceptions filed by the parties had the affect of disputing three Findings of Fact within the Hearing Officer's Recommended Order, each of the members of the Governing Board was furnished a complete transcript of the hearing held by the Hearing Officer and each Governing Board member has read the transcript.
With regard to the "Motion for Reconsideration and/or Remand for Further Proceedings Pursuant to Florida Statutes 120.57" and "Stipulation" filed by Petitioner the Governing Board:
Denies the Motion. The Motion and request constitute a materially different application than the one filed with the South Florida Water Management District and the subject matter of this hearing. Under Chapter 120.60, sections 373.116, and 373.413, Florida Statutes, and Rule 40E-1.603(3), Florida Administrative Code, applications for surface water management permits must be appropriately noticed. Acceptance of the Motion would constitute a denial of notice and due process afforded by statute and rule to substantially affected persons and said Motion is denied.
With regard to the "Motion to Strike" filed by Intervenor, Florida Audubon Society, the Governing Board takes no action. The denial of the Motion for Reconsideration under paragraph A operates to make any consideration of the Motion to Strike moot.
With regard to the exceptions to the Finding of Fact filed by Petitioner, the Governing Board acts as follows:
Exception No. 1 Approved. A review of the record indicates the plan of development does not encroach upon the L-40 right of way.
Exception No. 2 Denied. A review of the record does not reveal the finding of the Hearing Officer is misleading as to the characterization of discharge offsite.
With regard to the exception to the Findings of Fact filed by Respondent, South Florida Water Management District, the Governing Board acts as follows:
Exception No. 1 Approved. A review of the record indicates the onsite reservoir operates as an irrigation reservoir and for detention of storm water prior to discharge offsite.
The Governing Board adopts the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer, except as hereby modified.
Modification of paragraph 3 under Findings of Fact, page 2 to read "The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The plan does not encroach on the right of way of Conservation Area #1 also known as the Loxahatchee National Wildlife Refuge."
Modification of paragraph 1 under Findings of Fact, page 3 to read "The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a
240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal storm water runoff for subsequent agricultural irrigation and detention of storm water runoff prior to offsite discharge. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of storm water runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area."
Modification of paragraph 3, page 7 under Conclusions of Law to read "Petitioner correctly identifies Acme as the "user" of the water management system at issue here. Petitioner's reservoir and pumping facilities will become a part of the Acme system and will be operated by Acme. The closed system exemption does not apply to projects which propose to discharge offsite. The requirement that the level of a reservoir be maintained is in reference to water needed to replenish the water supply in the reservoir. That activity is regulated by a Part II Chapter 373 permit.
"Petitioner's proposed system is designed to detain storm water and then discharge offsite during storm events. This use of a reservoir and works so as to detain the agricultural storm water prior to discharge cannot constitute a closed system."
Based upon the above adoption of the Hearing Officer's Recommended Order as modified, the Governing Board denies the issuance of the permit as recommended by the Hearing Officer in accordance with the terms of this order.
DONE and ORDERED at a Public Meeting in West Palm Beach, Palm Beach County, Florida, this 12th day of January, 1984.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD
(Corporate Seal) ATTEST:
By: Chairman
By:
Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to JOHN S. WILBUR, JR., Post Office Box 2775, Palm Beach, Florida 3348a, and CHARLES LEE, Vice President, Florida Audubon Society, 1101 Audubon Way, Maitland, Florida 32751, by United States Mail, this 17th day of January, 1984.
FILED WITH THE CLERK OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT
ON January 13, 1984
By: Jean Guy
DEPUTY CLERK
Docket for Case No: 82-001639
Orders for Case No: 82-001639
| Issue Date |
Document |
Summary |
|
Jan. 13, 1984 |
Agency Final Order
|
|
|
Nov. 30, 1983 |
Recommended Order
|
Petitioner's application for surface water management permit denied for failure to abide by the statutory and rule guidelines.
|
