STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA WILDLIFE FEDERATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2235

) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, GORDON V. LEGGET, MOSELEY ) COLLINS, FAYE A. WILLIAMSON and ) COLLINS CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on August 2, 1983. The Division of Administrative Hearings received a transcript of the proceedings on October 17, 1983. The parties' proposed recommended orders were filed November 9 and 14, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: Dennis J. Powers, Esquire

Gunster, Yoakley, Criser & Stewart

400 South County Road

Palm Beach, Florida 33480

and

Terrell K. Arline, Esquire 325-C Clematis Street

West Palm Beach, Florida 33401

For Respondent: Irene Kennedy Quincey, Esquire South Florida 3301 Gun Club Road

Water Management West Palm Beach, Florida 33406 District

For Respondents: Charles P. Houston, Esquire Leggett, Collins 324 Datura Street, Suite 106

& Williamson West Palm Beach, Florida 33401

By amended petition for formal proceedings, Florida Wildlife Federation (FWF) stated various objections to the grant of an application filed with the South Florida Water Management District (SFWMD) by Messrs. Leggett and Collins and Ms. Williamson (applicants) for a permit to construct a surface water management system as part of developing a trailer park in Okeechobee County.

SFWMD proposes to issue the permit. By pleadings and prehearing statements, the controversy has been narrowed to the following

ISSUES

Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?

FINDINGS OF FACT

1. Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground.

   This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD.

   
   

   WATER QUALITY

   
   

2. The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p.

1. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself.

   
   

2. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby.

3. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state.

   
   

   BASIS OF REVIEW

   
   

4. Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are:

   
   

   3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems.

   
   

   3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations.

   
   

   1. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum,

      
      

      1. the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site.

   
   

   1. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3,

      
      

   2. Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . .

      
      

      1. Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater.

      2. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention.

         
         

      3. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention.

         
         

         3.2.4.1

         
         

      4. Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable.

         
         

      5. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom.

   
   

   3.2.4.4.2

   
   

   b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade.

   
   

   Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff.

   
   

   FWF'S INTEREST

   
   

5. Among the purposes of the FWF, as stated in its charter,

   
   

   Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will

   receive the maximum benefit from the same. (T. 248-9)

   
   

   Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38.

   
   

   PROPOSED FINDINGS CONSIDERED

   
   

6. The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

   CONCLUSIONS OF LAW

   
   

7. Rule 40E-4.301, Florida Administrative Code, requires that applicants like those in the present case "give reasonable assurances" that permitting criteria are met. Cf. Rule 17-6.59 (1)(a), Florida Administrative Code (applicant for DER permit "shall have the burden of establishing, by a preponderance of the evidence, entitlement . . .). See Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant" at 1103); see generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   349 (Fla. 1st DCA 1977). When a licensing agency has "set forth in writing the grounds or basis for [proposed] denial of a license," Rule 28-6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes (1981), "unless otherwise provided by law the applicant shall have the burden of establishing entitlement." Rule 28-6.08 (3), Florida Administrative Code.

   
   

8. In the present case, SFWMD has indicated its intention to issue the permit the applicants seek and has, in effect, waived its right to put the applicants to their proof in formal administrative proceedings.

   
   

9. Third party objectors also have rights in environmental licensing matters, however. Manasota-88, Inc. et al. v. Department of Environmental Regulation et al., No. AQ-480 (Fla. 1st DCA; November 8, 1983). Those rights are set forth with pellucid precision by Judge Larry Smith in Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), when he writes:

   
   

   [A]s a general proposition a party should be able to anticipate that when agency employees or officials having special knowledge or expertise in the field accept data and information supplied by the applicant, the same data and information, when properly identified and authenticated as accurate and reliable by agency or other witnesses, will be readily accepted by the hearing officer, in the absence of evidence showing its inaccuracy

   or unreliability. We emphasize again, however, that once a formal hearing is requested, there is no "presumption of correctness" in the mere fact that in preliminary proceedings the Department has issued its "notice of intent"

   to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion." See General Development Corporation v. Florida Land and Water Regulatory Commission, supra; and O'Neil v.

   Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Not every request for a formal Section 120.57(1) hearing may properly be granted, for it is clear that the petitioner must first demonstrate by appropriate pleading that there are disputed issues of fact requiring such a hearing. Blanchette v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979), United States Service Industries--Florida v.

   Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980). We totally agree with the sentiments expressed by amicus curiae Agrico that no third party, "merely by filing a petition," should be permitted to require the applicant to "completely prove anew" all items in a permit application down to the last detail. The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances" burden cast upon the applicant. The "burden of proof" is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted-- assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances" then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to the permit.

   This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of the equivalent quality is presented by the opponent of the permit. 396 So.2d at 789 (footnote omitted).

   
   

   As to any issue duly raised by FWF, however, the burden is on the license applicants who are obliged to show entitlement at a de novo hearing. SFWMD's intent to grant the surface water management permit is entitled to no weight whatsoever on any issue properly pleaded by a third party entitled to do so, once the facts pleaded by the objector are established.

   
   

   STANDING

   
   

10. The applicants have not called into question the sufficiency of FWF's petition insofar as it pleads standing or party status, but do contest the sufficiency of FWF's proof in this regard. While FWF's proof was not very detailed on this issue, it was nonetheless uncontroverted that FWF members make use of the waters into which runoff from the proposed development would flow. By this proof, FWF established its substantial interest in preserving the quality of receiving waters.

    
    

    THE MERITS

    
    

11. The applicants were shown to be owners of the property in question. Flood protection was not shown to be inadequate, although the control elevation would be less than "2 feet below the minimum road centerline elevation." Section 3.2.4.4.2, Basis for Review for Surface Water Management Permit Application.

12. With regard to surface water management permits, SFWMD's rules provide:

    
    

    In order to obtain a permit under this this chapter, an applicant must give reasonable assurances that the surface water management system:

    
    

    1. will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to chapter 373, Florida Statutes,

       
       

    2. will not cause discharges which result in any violation, in surface waters of the state, of the standards and criteria of chapter 17-3,

       
       

       (e) will not cause adverse environmental impacts,

       
       

       1. will not adversely affect public health and safety,

          
          

       2. is consistent with the requirements of other public agencies,

          
          

       3. is, in the opinion of the District, the most publicly acceptable alternative available,

       
       

       (n) will meet the . . . criteria in [the Basis for Review for Surface Water Management Permit Applications . . .]

       
       

       Rule 40E-4.301, Florida Administrative Code.

       
       

       The issue of water quality is variously stated in the foregoing rule and in Section 3.2 of the Basis for Review for Surface Water Management Permit Applications, which section the applicants incorporated in their statement of issues.

       
       

13. Even if sanitary sewers were installed and the use of septic tanks eschewed, the evidence adduced in the present case does not amount to reasonable assurances that there would be no "discharges which result in any violation, in surface waters of the state, of the standards and criteria of Chapter 17-3," as required by Rule 40E-301(1)(c), Florida Administrative Code. To the contrary, the evidence established that dissolved oxygen problems in C-38 would be aggravated in violation of Rule 40E-4.301(b), (e) and (n), Florida Administrative Code. The evidence also affirmatively established that alternatives to digging a borrow pit to the depth proposed could minimize or eliminate adverse environmental impacts off site. Reasonable assurances have not, therefore, been given that the project would comply with Rule 40E- 301(1)(1), Florida Administrative Code, since the "opinion of the District" must be supported by evidence of record.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That SFWMD deny the pending application for surface water management permit.

DONE and ENTERED this 29th day of November, 1983, 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 29th day of November, 1983.

COPIES FURNISHED:

Dennis J. Powers, Esquire Gunster, Yoakley, Criser &

Stewart

400 South County Road Palm Beach 33480

Terrell K. Arline, Esquire 325-C Clematis Street

West Palm Beach, Florida 33401

Irene Kennedy Quincey, Esquire 3301 Gun Club Road

West Palm Beach, Florida 33406

Charles P. Houston, Esquire

324 Datura Street, Suite 106 West Palm Beach, Florida 33401

Docket for Case No: 82-002235

Orders for Case No: 82-002235