STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DESROSIERS BROTHERS )
ENTERPRISES, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 87-0243
) CHARLOTTE COUNTY and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 14, 1987, in Fort Myers, Florida.
Petitioner Desrosiers Brothers Enterprises, Inc., was represented by Philip
Jones, Esquire, Punta Gorda, Florida; Respondent Charlotte County was represented by Matthew G. Minter, Esquire, Port Charlotte, Florida; and Respondent Department of Environmental Regulation was represented by Richard Grosso, Esquire, Tallahassee, Florida.
Respondent Charlotte County (hereinafter "the County") filed an application with Respondent Department of Environmental Regulation (hereinafter "the Department") for a stormwater discharge to wetlands permit. Petitioner Desrosiers Brothers Enterprises, Inc., (hereinafter "Desrosiers Brothers") challenged the Department's notice of its intent to issue a permit.
Accordingly, the issue for determination herein is whether the County's application for a stormwater discharge to wetlands permit should be approved.
The County presented the testimony of Walter J. Graham and Donald H. Ross.
Stuart M. Bradow testified on behalf of the Department, and Melvin H. Rector testified on behalf of Desrosiers Brothers. Additionally, Joint Exhibit numbered 1, the County's Exhibit numbered 1, and Desrosiers Brothers' Exhibits numbered 1-5 were admitted in evidence.
All parties submitted posthearing proposed recommended orders. Rulings on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Charlotte Highlands is an approximately 97-acre mobile home subdivision in Charlotte County, Florida. The roads in the subdivision are unpaved. The stormwater sheet flow in the area is from west to east.
To the east of Charlotte Highlands is a 21-acre hardwood swamp, the wetlands in question in this proceeding. Stormwater from the 97-acre
subdivision west of the wetlands and from the 250 acres west of the subdivision flows to the east into the wetlands. Water flows out of the wetlands to the east, from the 21-acre wetlands through a stream into Myrtle Slough. Myrtle Slough is part of the waters of the State.
The County wishes to create a stormwater drainage system for Charlotte Highlands. Under the County's plan, stormwater from the 97-acre subdivision would be discharged into the wetlands owned by Desrosiers Brothers. Although the County and the Department view this project as involving only the discharge of stormwater from the 97-acre subdivision into the wetlands, the stormwater discharged would include the stormwater flowing into the 97-acre subdivision from the 250 acres located directly west of the subdivision.
The County met with individuals from the Southwest Florida Water Management District, and that agency questioned the method of calculations used by the County in determining the amount of runoff into the proposed drainage system. Although new calculations of stormwater runoff volume were performed by the County, those new calculations were not provided to the Department in the County's permit application.
The wetlands in question contain cypress, maples, laurel oak, bay trees, percia, dahoon holly, buttonbush, ferns, palmetto, and wet pine. Some of these species, especially the maples, cannot withstand much flooding.
The outflow from the wetland into Myrtle Slough is via a natural stream. Although there are some indications that some excavation may have taken place in the stream, such as the spoil located near the cattle watering pond near the mouth of the wetlands, water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections.
The hydroperiod is the length of time water stays in a wetlands before it drains out of the wetlands. This determines the water level, the critical factor affecting a wetland's ability to perform its vital functions.
If the rate or volume of either the inflow or outflow of a wetlands is altered enough, the water level changes, usually with adverse environmental consequences. Certain species of flora will die off if the water level rises too much. Others require high water levels for their survival.
In order to assess the effects of a proposed alteration to such a system, one must determine the existing high pool and low pool. Donald H. Ross established the high and low pools for the County. He went to the wetlands and observed the stain, rack, and lichen lines on tree trunks. He also observed the cypress buttress. Ross also determined the invert of the stream, the elevation at which water first starts to run in it. Based solely on this site visit, the County determined the high pool in the wetlands to be at 14.8 NGVD and the low pool to be at 14.1 NGVD. No rainfall data was collected and analyzed; no hydrological studies were performed; no observations were made over a period of time.
There are two aspects of this project which can alter the hydroperiod of the wetlands. The first involves the amount of water entering the wetlands, and the second involves the amount of water leaving the wetlands. Currently, runoff from the 97-acre subdivision as well as the 250-acre area west of the subdivision drains toward the wetlands. The County intends to pave the roads in the subdivision and construct a system of swales. Although the paving will increase the impervious surface by an insignificant amount, the runoff will be
delivered to the wetlands faster. Accordingly, peaks in water level will occur more suddenly with increased water arriving more quickly.
Stormwatr is discharged into wetlands to take advantage of the pollutant-filtering functions of wetlands vegetation. To realize this function, the water must be held in the wetlands for a certain amount of time. The County intends to accomplish this by the installation of a control structure, known as a weir, which will regulate the amount of water leaving the wetlands. The County proposes to construct a weir on the stream between the wetlands and Myrtle Slough approximately 100 feet from the mouth of the wetlands.
The top of the weir for this system will be set at 14.8 NGVD, the high pool established by Ross for the County. The weir will also have an orifice set at 14.1 NGVD, the low pool established by Ross and the County, which will allow a constant flow of water out of the wetlands at that elevation.
The control structure will cause water to remain in the wetlands for a longer period of time, which will raise the water level in the wetlands by some amount. In order to accurately predict this amount, it is necessary to determine the storage capacity of the wetlands. The County calculated that a storage capacity of 177,761 cubic feet would be required for the wetlands to contain the first one-half inch of rainfall from the 97-acre subdivision. No calculations have been made as to the storage capacity required for the wetlands to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands.
The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of the wetlands, the impact of its project on the wetlands cannot be determined.
As an alternative to this project the County considered rerouting the stormwater away from the wetlands. Diverting necessary water from the wetlands would result in the desiccation of the wetlands. However, an increased water flow if not properly discharged would likely result in an over impoundment of the wetlands. Either approach would have an adverse impact on a productive wetland system, such as the wetlands involved here, and a change in the vegetation would adversely impact the wetland's ability to treat the discharge.
The treatment of stormwater in wetlands is a relatively new technique. Although some projects have been approved in other parts of the State, projects such as that proposed by the County have not been used yet in southwest Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The Department of Environmental Regulation has jurisdiction to require the sought-after permit pursuant to section 403.087, Florida Statutes, and rule 17-25.042, Florida Administrative Code.
Prior to the hearing in this cause the parties submitted a prehearing stipulation wherein they agreed that the County's entitlement to a dredge and fill permit for the weir has not been challenged; therefore, only the entitlement to a stormwater discharge to wetlands permit under chapter 17-25,
Florida Administrative Code, has been challenged in this proceeding. The parties further stipulated that the only issues surrounding the stormwater discharge to wetlands permit to be determined herein are whether the wetlands are the type of wetlands which may be used for stormwater management pursuant to rule 17-25.042(2), Florida Administrative Code, and whether issuance of the permit would violate rule 17-25.042(6)(c) Florida Administrative Code, which prohibits disruption of the normal range of water level fluctuation of the receiving wetland.
Section 17-25.042(2), Florida Administrative Code, provides as follows:
The wetlands to be used for stormwater management are those:
which are connected to other waters by artificial watercourses; or
which are connected to other waters solely by an intermittent watercourse.
The parties have stipulated that the watercourse between the wetlands and Myrtle Slough is not an intermittent watercourse. As to the definition of artificial watercourse, rule 17-25.02(1), Florida Administrative Code, provides as follows:
"Artificial Watercourse" means a man-made waterway that was totally dredged or excavated prior to October 1, 1984 and which connects formerly isolated, nonjurisdictional wetlands to other waters. The Department shall bear the burden to show that such artificial watercourse was not totally dredged or excavated or that the connected wetlands were formerly jurisdictional.
The watercourse connecting the wetlands to Myrtle Slough is a natural watercourse and is not a man-made waterway that was totally dredged or excavated. Accordingly, the wetlands in question are not the type of wetlands which can be used for stormwater management and treatment.
As to the second issue, rule 17-25.042(6), Florida. Administrative Code, provides as follows:
A showing by the applicant that the wetlands stormwater discharge facility design complies with the performance standards listed below shall create a presumption in favor of the issuance of the permit:
* * *
(c) the utilization of wetlands for stormwater treatment shall not adversely affect the wetland by disrupting the normal range of water level fluctuation of the wetland as it existed prior to construction of the wetlands stormwater discharge facility. Normal range of water level fluctuation will be defined as the
maintenance of the fluctuating water surface changes between the normal low water and the normal high water of the wetland system so as to prevent the desiccation or over impoundment of the wetland. The Department shall use water level data, lines on the trees, adventitious roots or other hydrological and biological indicators to determine the normal low and normal high water levels.
Upland detention may be necessary to attenuate peak flows and meet the water level fluctuations specified above. When the normal range of water level fluctuations has been artificially altered, the Department shall establish an acceptable range of water level fluctuation based on historical information as to the previous size and nature of the wetlands, if available. If such information is not available, the range of water level fluctuation shall be derived from sound scientific principles or from analysis of other natural wetland systems in the vicinity.
Determination of the high pool and low pool levels was made solely by conducting an on-site visit. The high pool level was established by an examination of the cypress buttress and of the stain, rack, and lichen lines on trees. The low pool level was established by the invert of the stream. No hydrological studies were performed, no rainfall data was considered, and no long-term observation was conducted. In short, the normal range of water level fluctuation has not been established. Accordingly, the County is unable to prove that its proposal will not adversely affect the wetlands by disrupting normal range of water level fluctuation as it exists prior to construction of the wetlands stormwater discharge facility.
Rather, Petitioners have shown that an adverse affect on the wetlands is likely if stormwater is permitted to drain into the wetlands under the County's drainage proposal. The proposal will result in the retention of stormwater in the wetlands for longer periods of time which will cause increased water levels with certain areas of the wetlands remaining inundated for longer periods of time. Such prolonged water inundation will be detrimental to many of the species in the wetlands and will decrease the ability of the wetlands to serve as a treatment facility. Finally, as testified to by the Department's witness, there is little precedent for this type of project in southwest Florida. It would seem, therefore, that a more exhaustive study is needed before the true effects of the discharge proposal in question can be determined.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that a Final Order be entered denying Charlotte County's application for a wetlands stormwater discharge facility permit.
DONE and RECOMMENDED this 8th day of October, 1987, at Tallahassee, Florida.
LINDA M. RIGOT, 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 8th day of October, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0243
Although Charlotte County filed a document called Proposed Findings of Fact and Conclusions on the Evidence, rather than setting forth any findings of fact the County simply makes what it calls a Comparison of Evidence on Issue 1 and a Comparison of Evidence on Issue 2, listing under each heading excerpts from the testimony of each of the witnesses in this proceeding. Accordingly, no rulings are made herein on Charlotte County's proposed findings of fact since it is determined that there are none.
Desrosiers Brothers' proposed findings of fact numbered 1-9, 15, 17, 24, 26, 27, and 38 have been adopted either verbatim or in substance in this Recommended Order.
Desrosiers Brothers' proposed findings of fact numbered 10-12, 19-21, 23, 25, 29-37, 40, and 41 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony.
Desrosiers Brothers' proposed findings of fact numbered 13, 14, 16, 18, 22, 28, and 39 have been rejected as being unnecessary or subordinate to the issues under consideration herein.
The Department's proposed findings of fact numbered 1, 2, 14 in part, 15,
16 in part, 17 in part, 18-22, 27, and 28 in part have been adopted either verbatim or in substance in this Recommended Order.
The Department's proposed findings of fact numbered 5 and 6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony.
The Department's proposed findings of fact numbered 16 in part, and 17 in part have been rejected as being unnecessary or subordinate to the issues under consideration herein.
The Department's proposed findings of fact numbered 3, 4, and 7-13 have been rejected as being contrary to the weight of the evidence in this cause.
The Department's proposed findings of fact numbered 14 in part, 23-26, and
28 in part have been rejected as not being supported by the evidence in this cause.
COPIES FURNISHED:
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Philip J. Jones, Esquire
201 West Marion Avenue Suite 301
Punta Gorda, Florida 33950
Matthew G. Minter, Esquire 18500 Murdock Circle
Port Charlotte, Florida 33948-1094
Richard Grosso, Esquire Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DESROSIERS BROTHERS ENTERPRISES, INC.,
Petitioner,
vs. DOAH FILE NO. 87-0243
OGC FILE NO. 86-1617
CHARLOTTE COUNTY and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
/
FINAL ORDER
On October 8, 1987, the Division of Administrative Hearings' hearing officer submitted to me her Recommended Order in the above-styled case for final agency action. A copy of that Recommended Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)9., Florida Statutes, and Florida Administrative Code Rule 17-103.200(1), all parties to the proceeding were allowed 10 days in which to file exceptions to the Recommended Order. The Department of
Environmental Regulation ("Deartment", was the only party to file exceptions. Petitioner, Desrosiers Brothers Enterprises, Inc., filed a response to the Department's exceptions. Copies of the exceptions and response thereto are attached as Exhibits B and C respectively. Thereafter the Recommended Order came before me as Secretary of the agency for final agency action.
BACKGROUND
This case involves an application by Charlotte County ("the County") for a permit for stormwater discharge to wetlands pursuant to Chapter 17-25, Florida Administrative Code. As part of a project to improve the roads and drainage in Charlotte Highlands, a residential subdivision in Charlotte County, Florida, the County has proposed to create a stormwater drainage system that would involve discharging treated stormwater into a 21-acre wetland located on adjacent property owned by Petitioner. A watercourse connects this wetland to Myrtle Slough, which is waters of the State. After the Department filed notice of its intent to issue Permit Number 08-1236345 to the County, Petitioner filed a petition for an administrative hearing to challenge issuance of the stormwater discharge to wetlands permit. That hearing was held on July 14, 1987, and resulted in the Recommended Order which is now before me.
RULINGS ON EXCEPTIONS
The Department has filed three exceptions to the Recommended Order.
Because the third exception raises a threshold issue, i.e., whether the wetland in question is one which may be utilized for stormwater discharge, I will deal with that exception at the outset in order to facilitate a logical analysis of the issues.
Exception Number Three
In its third exception, the Department asks me to reject the hearing officer's finding that "water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections" as contained in finding of fact number 6 in the Recommended Order. In considering this exception I note that if the hearing officer's finding is supported by competent substantial evidence in the record, I am not free to substitute my judgment for hers, and consideration of the Department's remaining exceptions will be rendered moot by virtue of Rule 17-25.042(2)(a), Florida Administrative Code which provides as follows:
The wetlands to be used for stormwater management are those:
which are connected to other waters by artificial watercourses ...
"Artificial watercourse" is defined in Rule 17-25.020(1), Florida Administrative Code, as follows:
(1) "Artificial Watercourse means a
man-made waterway that was totally dredged or excavated prior to October 1, 1984 and which connects formerly isolated, nonjurisdictional wetlands to other waters. The Department shall bear the burden to show that such artificial watercourse was not totally dredged or
excavated or that the connected wetlands were formerly jurisdictional.
These rule provisions implement Section 403.918(3), Florida Statutes, which limits the use of designated waters of the State for stormwater management to those waters which are dominated by wetland plant species listed in Section 403.817, Florida Statutes, and:
Which are connected to other watercourses by artificial watercourses;
or
Which are connected to other waters solely by an intermittent watercourse.
Therefore, if the wetland is not one which may be utilized for stormwater discharge under the statute and applicable Department rules, the remaining issues relating to whether the facility design meets applicable performance standards will be rendered moot. Furthermore, if any part of the watercourse connection between the wet land and waters of the state is solely artificial, the connection is an "artificial watercourse" within the meaning of the statute and the above rules.
Review of the transcript of proceedings before the hearing officer discloses that the issue of whether the wetland in question is connected to waters of the state by a natural watercourse or an artificial watercourse was, understandably, strongly contested by the parties. At first blush, it would seem that the hearing officer has merely resolved the conflicting opinions of several experts in favor of Petitioner's expert, who was the only witness to offer an opinion that the wetland was connected to Myrtle Slough by a natural watercourse. If the opinions of those experts are based on competent substantial evidence in the record, I am bound by the hearing officer's resolution of conflicts between such opinions. On the other hand, if the opinion relied upon by the hearing officer is unsupported by competent substantial evidence in the record, that opinion cannot form the basis of a finding of fact made by the hearing officer and the hearing officer's finding must be rejected or modified based on an independent review of the evidence.
In reviewing the record, I note that the hearing officer rejected all of Petitioner's proposed findings to the effect that the wetland in question was connected to waters of the state by means of a natural watercourse. However, since no other expert expressed this opinion, the hearing officer's Finding of Fact number 6 could only be based on the opinion expressed by Melvin H. Rector, Petitioner's expert. My review of this exception, then, is limited to a determination of whether Mr. Rector's opinion is based on competent substantial evidence in the record.
Mr. Rector testified to a rather detailed observation of the wetland itself, but the record discloses that he made only a very limited and incomplete observation of the watercourse connecting the wetland to Myrtle Slough. He testified specifically that his only firsthand observation of what he assumed to be the portion of the connection at issue was based on a circumspection of the watercourse from atop a small culvert lying west of the swamp (T. 98). From there he took a photograph of what he described as "a heavily channelized portion of the stream" running roughly north from the culvert, which photograph was included as the lower right-hand photograph in Petitioner's Exhibit 3. Mr. Rector's observation of the physical characteristics depicted by that photograph led him to offer an opinion that the watercourse connection, as shown in that
photograph, is a natural stream rather than an artificial connection. On cross- examination he verified that his opinion related only to the portion of the watercourse depicted by the photograph in question (T. 119-21.)
On rebuttal the Department's expert, Stuart Bradow, testified that none of the photographs taken by Mr. Rector depicted the area that he (Bradow) observed as the basis for his opinion that the connection was artificial (T. 135-37).
Mr. Bradow's opinions were based upon his personal observations conducted along the entire length of the watercourse, whereas Mr. Rector's opinion was based on his observation of only a portion therefore, as a result of his erroneous assumption as to which portion of the watercourse was at issue. Mr. Rector admitted on cross-examination that he had made no firsthand observations of the connecting watercourse other than the limited portion depicted in Petitioner's Exhibits 3, 4 and 5 (T. 119-21, 129). (It should be noted that Mr. Rector also testified briefly with regard to his examination of aerial photographs in evidence, but he was unable to give any opinions, other than mere possibilities, based on such photographs (T. 118-20). Competent substantial evidence, of course, must be more than mere speculation or conjecture.)
As noted above, Mr. Rector's opinion was the only opinion to the effect that the wet land in question is connected to waters of the state by a natural watercourse, and that opinion was based on an erroneous assumption as to what portion of the watercourse was at issue. It is worth repeating that if any part of the connection is solely artificial, that part of the connection constitutes an artificial watercourse. Not having observed the entire watercourse connection, and in the absence of any opinions based on aerial photographs or other indirect evidence, Mr. Rector's opinion on this issue is unsupported by any factual evidence in the case and therefore must be rejected. Accordingly, the hearing officer's finding of fact number 6, which is based solely on Mr.
Rector's opinion, must likewise be rejected. Based on an independent review of the record, I accept the unrebutted opinions of Donald H. Ross and Stewart Bradow that a portion of the watercourse connection consists of an artificial ditch dug through uplands. These opinions are based on the witnesses' personal observations and constitute the only evidence in the record with regard to the portions of the connection in question.
For the reasons set forth above, I accept the Department's third exception and reject the hearing officer's sixth Finding of Fact. I find that the unrebutted evidence establishes that a portion of the watercourse connecting the wet land in question with Myrtle Slough was artificially dug through uplands and accordingly the wet land is a type contemplated by statute and by Department rule as being suitable, if other prerequisites are met, to receive stormwater discharge.
Having made this ruling with regard to the threshold issue in the case, I now proceed to consideration of the Department's remaining exceptions, which deal essentially with the issue of whether the County has provided the necessary reasonable assurance of entitlement to the permit.
Exception Number One
In its first exception, the Department argues that the hearing officer's Finding of Fact number 14 should be rejected. That finding is as follows:
14. The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of
the wetlands, the impact of its project on the wetlands cannot be determined.
At the outset, I note that this finding by the hearing officer is mixed conclusion of law and finding of fact rather than a pure finding of fact, involving the application of Rule 17-25.042(6)(c), Florida Administrative Code. That rule provides as follows:
(6) A showing by the applicant that the wetlands stormwater discharge facility design complies with the performance standards listed below shall create a presumption in favor of the issuance of the permit:
* * *
The utilization of wetlands for stormwater treatment shall not adversely affect the wet land by disrupting the normal range of water level fluctuation of the wetland as it existed prior to construction of the wetlands stormwater discharge facility. Normal range of water level fluctuation will be defined as the maintenance of the fluctuating water surface changes between the normal
low water and the normal high water of the wetland system so as to prevent the desiccation or over impoundment of the wetland. The Department shall use water level data, lines on the trees, adventitious roots or other hydrological and biological indicators to determine the normal low
and normal high water levels. Upland detention may be necessary to attenuate peak flows and meet the water level fluctuations specified above. When the normal range of water level fluctuations has been artificially altered, the Department shall establish an acceptable range of water level fluctuation based on historical information as to the previous size and nature of the wetlands, if available. If such information is not available, the range of water level fluctuation shall be derived from sound scientific principles or from analysis
of other natural wetland systems in the vicinity.
The evidence was uncontroverted in this case that the wetland in question has been artificially altered, but this was accomplished a number of years ago. The record further establishes, without dispute, that vegetation has reestablished itself at the new, lower water levels. All parties were in agreement that the current range of water level fluctuation in the wetland, rather than historical water levels, should be used as the starting point of the determinations. I find that this approach is consistent with the application of sound scientific principles as established by the record, and I further find
that, in view of such circumstance, the criteria specified in the rule represent the proper method of determining the normal range of water level fluctuation.
Both Donald Ross, the County's expert, and Stuart Bradow, the Department's expert, testified that the determination of the normal high water levels was based on lichen lines on trees (which would denote the upper end of the high water range) as well as buttress lines of cypress trees and "rack" or debris lines on vegetation. The level selected was one-half foot below the high water level evidenced by the lichen lines, and consistent with the rack and buttress lines determined by direct observation. The normal low water level was selected as the invert level of the ditch, that being the lowest level at which water would continue to flow out of the wetland.
The hearing officer apparently considered it important, as evidenced in her Finding of Fact number 9, that no rainfall data was collected and analyzed, no hydrological studies were performed, and no observations were made over a period of time. However, none of these determinations are required by the rule and, in fact, the unrebutted testimony established that they were not required in this case because they would be expensive for the applicant, time consuming, and would be expected to be redundant of the physical evidence in the field. It should be noted that Petitioner's expert made no attempt to determine an appropriate normal high water level and gave no opinion thereon; he simply attempted to measure the ultimate elevations that the County, had determined to be appropriate for the low-water orifice in the proposed weir and determined that this orifice would be located at too high an elevation, resulting in an overimpoundment of water in the wet land and a consequent adverse affect on the wetland species growing there.
Based on my review of the record, I find no error in the set of indicators used by the County to determine the normal low and the normal high water levels in the wetland. It goes without saying, however, that use of the proper indicators does not automatically result in a proper weir design. The rule requires not only that the proper indicators be utilized to determine the normal low and normal high water levels, but also that the normal range of water level fluctuation in the wet land shall be maintained so as to prevent the desiccation or overimpoundment of the wetland. The only evidence that the record contains of an actual field demonstration of the ultimate specifications determined by the County for the weir design is the testimony of Mr. Rector, who conducted direct measurements in the field from the County's specifications for the weir design as contained in sheet 3 of the County's application (Joint Exhibit 1).
Mr. Rector determined that construction of the weir as specified would result in a low pool elevation approximately two feet higher than previously existed in the wetland (T. 105, 108-09, 112-13). It thus cannot be said that the county has provided reasonable assurances that its ultimate design, if implemented, will not result in overimpoundment of water in the wetland. Therefore, while I reject the hearing officer's finding that the county has failed to establish the hydroperiod of the wetlands, as well as any further implication in her order that it is necessary in all cases or under the facts of this case for an applicant to supplement the requirements of the rule with additional data relating to rainfall, additional hydrological studies, or prolonged observations over an extended period of time, I nevertheless find that the applicant has failed to meet its burden of providing reasonable assurance that its proposed design will maintain the normal range of water level fluctuation so as to prevent overimpoundment of the wetland. Because the requirements of Rule 17- 25.042(6)(c) have not been met, there can exist no presumption in favor of issuance of the permit. I will return to the consequences of this determination following my consideration of the Department's second exception.
Exception Number Two
The Department's second exception takes issue with the hearing officer's Finding of Fact number 13, which finds that the calculations submitted by the County were improper because they were not based on the ability of the wetland "to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands." The Department urges that this finding misinterprets Rule 17- 25.042(6)(b), Florida Administrative Code, which provides as follows:
(6) A showing by the applicant that the wetlands stormwater discharge facility design complies with the performance standards listed below shall create a presumption in favor of the issuance of the permit:
* * *
(b) the facility is part of a comprehensive stormwater management system that utilizes wetlands in combination with other best management practices to provide treatment of the runoff from the first one inch of rainfall; or, as an option for projects or project subunits with drainage areas less than 100 acres, the first one-half inch of runoff.
The Department's second exception, in essence, asks me to interpret this language so as to equate the term "drainage area" with the term "project." In this case, there is no dispute that the subdivision ("the project") comprises 97 acres, but if the adjacent 250-acre watershed is included in determining the drainage area, the size will be substantially greater than 100 acres.
I am unable to accept the position taken by the Department in its second exception, and accordingly reject that exception and affirm the finding of the hearing officer to the effect that the drainage area as contemplated by the rule must include drainage from the adjacent watershed where, as here, that drainage will ultimately flow onto the project and become part of the project's stormwater that will be discharged into the wetland. The record in this case contains no calculations from which the runoff from the first one inch of rainfall can be determined. The calculations submitted by the County would meet the requirements of the rule only if the rule is interpreted so as to exclude consideration of the adjacent watershed area from the calculations. I find that such an interpretation would be illogical and would defeat the intent of the rule, which is to assure that the wetlands to be used for treatment and storage of stormwater runoff have adequate storage volume for the discharge they will be receiving. The critical variable is the amount of water to be treated and discharged into the wetland, not simply the size of the project as determined by its property boundaries (which normally will be unrelated to the size of the drainage area). In making this interpretation of the rule, I specifically limit such interpretation to situations where, as here, the project is actually receiving surface water flow from the adjacent watershed. If flow from the watershed is diverted around the project, or the project is otherwise isolated from the effects of such flow, then "drainage area" would be the same as the project size.
For the foregoing reasons, I find that the County has failed to comply with the performance standard set out in this part of the rule because it has failed
to provide calculations showing that the wetland can provide treatment of the runoff from the first one inch of rainfall from the drainage area for the project.
CONCLUSION
The record in this case, reviewed in light of the exceptions filed by the Department and the responses thereto filed by Petitioners, establishes that the wetland for which the wetlands stormwater discharge permit is sought in this case is connected to waters of the state by means of an artificial rather than a natural watercourse, and is therefore a wetland which may be used for stormwater management as provided by Rule 17-25.042(2)(a), Florida Administrative Code.
However, as noted in my rulings on the Department's first and second exceptions, the applicant (County) has failed to demonstrate compliance with the performance standards set forth in paragraphs (b) and (c) of Rule 17-25.042(6), Florida Administrative Code. The effect of Rule 17-25.042(6) is to create a presumption in favor of issuance of the permit if all performance standards contained therein are complied with. If the applicant fails to comply with one or more of such performance standards, then Rule 17-25.042(5)(b), Florida Administrative Code applies, which provides as follows:
(b) if the applicant is unable to show compliance with the performance standards in Section 17-25.042(6), the applicant may qualify for a wetlands stormwater discharge facility permit using alternative design and performance standards approved by the Department provided that the use of the wetlands is compatible with the ecological characteristics of the wetland and the applicant complies with-Section
17-25.042(4), F.A.C.
In view of my previous rulings, I find that the applicant has failed to provide the necessary reasonable assurances to demonstrate entitlement to the requested wetlands stormwater discharge permit, and accordingly the permit application must be denied. Such denial is without prejudice to the submission of a new or modified application in accordance with Rule 17-25.042, Florida Administrative Code.
Accordingly, having considered the record and pleadings in this matter it is ORDERED:
The hearing officer's findings of fact and conclusions of law are adopted as modified herein;
The County's application for a wetlands stormwater discharge permit is denied;
The applicant is not precluded from submitting a new wetlands stormwater discharge permit application for the Charlotte Highlands subdivision in accordance with the provisions of this order.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Civil Procedure, with the clerk of the
Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 18th day of November, 1987, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
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 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
11-19-87
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy hereof has been furnished by United States Mail to Phillip J. Jones, Esquire, 201 West Marion Avenue, Suite 301, Punta Gorda, Florida 33950, and Matthew G. Minter, Esquire, 18500 Murdock Circle, Port Charlotte, Florida 33948-1094; and by hand delivery to the Department of Administrative Hearings, and Richard Grosso, Esquire, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, on this 19th day of November, 1987.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Oct. 08, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 18, 1987 | Agency Final Order | |
| Oct. 08, 1987 | Recommended Order | Charlotte County's application for a wetlands stormwater facility permit denied due to inappropriate wetlands and insufficient study of effects. |
