STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANTA FE PASS INC., )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-1445

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent, )

and )

)

SANTA FE LAKE DWELLERS )

ASSOCIATION, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was conducted on September 15, 1986, in Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Frank L. Matthews, Esquire

Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS

Post Office Box 6526 Tallahassee, Florida 32314

For Respondent: Bradford L. Thomas, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor: Timothy Keyser, Esquire

Post Office Box 92 Interlachen, Florida 32048

At the final hearing, the applicant introduced 13 exhibits, numbered 1-10, and 13-15. The applicant also presented testimony from James D. Henderson, a professional engineer and expert in drainage and stormwater design and engineering; Dr. Robert L. Knight, an expert in systems ecology and the impacts vegetation on aquatic systems; Larry H. Cheshire, a principal of Santa Fe Pass, Inc.; John Cox, an employee of the Department and an expert in stormwater management systems and the implementation and application of Chapter 17-25, F.A.C.; and Dr. Harvey H. Harper, professor at the University of Central Florida and an expert in stormwater management systems, hydrology, and groundwater and surface water quality chemistry. Intervenor, SFLDA, offered the live testimony

of Harold Hill, an expert in retention basins and excerpts from a deposition of Arlynn Q. White, Jr. Both the applicant and SFLDA requested that the Hearing Officer take official recognition of various documents and publications, and these requests were granted.

At the conclusion of the hearing, pursuant to stipulation of the parties, the Hearing Officer allowed the parties until October 15, 1986, within which to file their proposed findings of fact and conclusions of law. On October 15, 1986, the Petitioner and the Respondent (the applicant and DER) filed a timely joint proposed recommended order. On October 17, 1986, the Intervenor filed a proposed recommended order. Both proposed recommended orders contain proposed findings of fact conclusions of law. Both proposed recommended orders have been carefully considered in the formulation of this Recommended Order. A specific ruling on each proposed finding of fact in both proposed recommended orders is contained in the Appendix which is attached to and incorporated into this Recommended Order.

ISSUE

The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.

FINDINGS OF FACT

Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact.

1. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility.

   This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny.

   The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified.

   
   

2. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the

   construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County.

   
   

3. There are basically four types of treatment being provided in the proposed stormwater management system:

   
   

   1. Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin;

   2. The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand;

   3. Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and

   4. One and one-half inches of runoff from

      4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area.

      
      

4. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes.

   Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall.

   In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake.

   
   

5. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5),

   F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action.

   
   

6. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe.

   
   

7. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph.

8. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. The standards by which stormwater management construction permits are evaluated are found in Section 17-25.04, F.A.C., and the applicable standards provide:

    
    

    1. A construction permit may be issued to the applicant, upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the stormwater discharge facility will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

    2. A showing by the applicant that the facility design will provide treatment equivalent to either retention, or detention with filtration, as described in this Chapter, of the runoff from the first one inch of rain fall; or, as an option for projects or project subunits with drainage areas less than 100 acres, the first one half inch of runoff, shall be presumed to provide reasonable assurance pursuant to subsection

    (4) above, provided that adequate provisions have been made for operation and maintenance of the proposed facility. However, facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Section 17-25.025(9).

11. Because the receiving waters for the proposed stormwater management system are designated Outstanding Florida Waters, 17-25.04(5) provides for additional storage requirements found at Section 17-25.025(9), F.A.C. The applicant has provided the additional storage as specified in Section 17- 25.025(9) and has thus presumptively afforded the Outstanding Florida Waters the additional protection the Legislature intended by its designation.

    
    

12. Moreover, the special protections afforded Outstanding Florida Waters by Section 17-4.242(1) have been satisfied. The applicant has provided competent and substantial evidence by comparing the predicted concentrations of the waters discharged with ambient water quality that there will be no degradation of the receiving waters. Furthermore, the public interest criteria found in Section 403.088(2), F.S., and Section 17-4.242(1), F.A.C., are inapplicable to this application. The proposal does not involve the discharge of waste into an Outstanding Florida Water and the public interests standards found in Section 403.088(2), F.S. are applicable only for waste discharge operating permits. See Caloosa Prop. Owners' Assoc. v. DER 462 So.2d 523 (Fla. 1st DCA 1985). See also Barteki v. Department of Environmental Regulation, 471 So.2d 1325 (Fla. 1st DCA 1985); Environmental Confederation of Southwest Florida, Inc. v. Cape Cave Corporation, et al., 8 FALF 317. (DER Final Order 1985) Additionally, in Barteki, the First District Court of Appeal has held that:

    
    

    to the extent it requires an applicant to meet a `public interest' requirement prior to the issuance of a construction permit for a stationary installation not involving the discharge of waste into waters within the state, Rule 17-4.242 was an invalid exercise of delegated legislative authority

    
    

    471 So.2d 1325, quoting, Grove Isle Limited v. DER, 454 So.2d 571 at 575 (Fla. 1st DCA 1984), reh. denied.

    
    

13. Rule 17-25.027, F.A.C., reads as follows, in pertinent part:

    
    

    1. The Department considers the following entities to be acceptable for meeting the requirements necessary to ensure that a stormwater discharge facility will be operated and maintained in compliance with the requirements of this chapter and other Department regulations:

       (a)-(d) * * *

       1. the property owner or developer is normally not acceptable as a responsible entity when the property is intended to be sold to third parties. However, the property owner may be acceptable under one of the following circumstances:

          1. * * *

          2. Bonding or other assurances sufficient to operate and perform anticipated maintenance on stormwater facilities.

       2. profit or nonprofit corporations including homeowners associations, property

       owners associations, condominium owners associations or master associations shall be acceptable only under certain conditions that a ensure that the corporation has the

       financial, legal and administrative capability to provide for the long term operation and maintenance of the stormwater discharge facility.

       
       

    2. Entity Requirements.

    1. if a Homeowner, Property Owner, Condominium or Master Association is proposed, the owner or developer must submit the Articles of Incorporation, Declaration, Restrictive Covenants, Deed Restrictions or such other organizational or operational documents affirmatively taking responsibility for the operation or maintenance of the stormwater discharge facility.

    2. the Association shall have sufficient powers reflected in its organizational or operational documents to:

    1. operate and maintain the stormwater management system and the stormwater discharge facility as exempted or permitted by the Department.

    2. establish rules and regulations.

    3. assess members.

    4. contract for services (if the Association contemplates employing a maintenance company) to provide the services for operation and maintenance.

    5. the Association shall exist in perpetuity; however, if the Association is dissolved, the Articles of Incorporation must provide that the stormwater management system and discharge facility shall be maintenanced by an entity as set forth in paragraph (1) of this rule.

    
    

14. The testimony and evidence submitted in this matter establish compliance with the operation/maintenance entity requirements of Section 17- 25.027, F.A.C. Due to the applicant's showing of the existence of a responsible homeowners' association, there is no basis upon which to require the posting of a bond or other extraordinary measures to insure that maintenance activities will be undertaken.

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above.

DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445

The following are my specific rulings on each of the findings of fact proposed by the parties.

Findings proposed by Petitioner and Respondent

Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted.

Paragraph 4: Accepted.

Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.)

Paragraphs 8, 9, and 10: Accepted.

Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted.

Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance.

Findings proposed by Intervenor

Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted.

Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.)

Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance.

Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence.

Paragraph 9: Rejected as irrelevant.

Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details.

Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence.

Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details.

Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with

deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity.

COPIES FURNISHED:

Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS

Post Office Box 6526 Tallahassee, Florida 32314

Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 86-001445

Orders for Case No: 86-001445