STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GEORGE HALLORAN, )
)
Petitioner, )
and )
)
ROBERT R. KUNKEL, )
)
Intervenor, )
)
vs. ) CASE NO. 92-6254
) UNITED STATES DEPARTMENT OF THE ) NAVY and SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on January 27-28, 1993, in Key West, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner George Halloran, pro se George Halloran: 16B Hilton Haven Drive
Key West, Florida 33040
For Intervenor Herbert Walker
Robert Kunkel: Qualified Representative
1207 Florida Street
Key West, Florida 33040
and
Robert Kunkel, Esquire Key West Law Office, P.A.
444 Whitehead Street
Key West, Florida 33040
For Respondent John J. Fumero, Esquire South Florida Toni M. Leidy, Esquire Water Management Office of Counsel
District: South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416-4680
For Applicant/ Stephen A. Beverly, Esquire Respondent Department of the Navy
U.S. Navy: Naval Facilities Engineering Command
2155 Eagle Drive
Post Office Box 190010
North Charleston, South Carolina 29419 STATEMENT OF THE ISSUE
The issue in this case is whether the Respondent, South Florida Water Management District ("SFWMD",) should issue a Surface Water Management General Permit to the Respondent/Applicant, the U.S. Navy (the "Navy"). More specifically, the issue is whether the Navy has provided reasonable assurances, in accordance with the applicable water quality permit criteria, that the proposed surface water management system for the Navy's Peary Court project will meet state water quality standards.
PRELIMINARY STATEMENT
On February 6, 1992, the Navy submitted an application to the SFWMD for a Surface Water Management General Permit for a proposed Naval Housing Facility (the "Project") located at Peary Court in Key West, Florida. By letter dated September 29, 1992, the SFWMD notified the Navy of its intent to issue General Permit and Stormwater Discharge Certification No. 44-00178-S (the "Permit") for the Project. The Permit incorporated twelve "standard limiting conditions" and fourteen "special conditions".
On October 14, 1992, Petitioner Halloran challenged the issuance of the Permit by filing a Petition for Administrative Hearing with the SFWMD. In his Petition, Halloran alleged that discharges from the Project would degrade the quality of water in Garrison Bight, which was alleged to be an Outstanding Florida Water ("OFW"). The SFWMD transmitted the Petition to the Division of Administrative Hearings ("DOAH") for hearing pursuant to Section 120.57, Florida Statutes. The case was assigned DOAH Case No. 92-6254. On October 23, 1992, Intervenor Kunkel filed a separate Petition for Administrative Hearing with the SFWMD challenging the issuance of the Permit. As set forth in an Order dated December 24, 1992, at the request of the SFWMD, Kunkel's Petition was treated as a Petition to Intervene in Case No. 92-6254 and Kunkel was granted party status an an Intervenor in the case. The formal hearing on both Petitions was conducted on January 27-28, 1993.
At the hearing, the Navy presented the testimony of one witness: Rice Creekmore, the project engineer of the surface water management system at issue in this case. Mr. Creekmore was accepted as an expert in surface water management and drainage. The Navy had twelve exhibits marked during the course of the hearing (Navy Exhibit numbers A-L,) all of which were accepted into evidence except Navy Exhibits K and L which were not offered. The hearsay contents of Navy Exhibit H were noted and the document was accepted in accordance with the provisions of Section 120.58(1)(a), Florida Statutes.
Copies of Navy Exhibits B, C, D and E were oversized construction drawings and photographs that were used at the hearing and subsequently transmitted by mail and received by DOAH on February 5, 1993. Those exhibits were reviewed and considered in the preparation of this Recommended Order. Counsel for Intervenor contacted the undersigned Hearing Officer in mid-April requesting that those exhibits be released to the Florida Department of Environmental Regulation ("FDER") for use in a related administrative proceeding. FDER retrieved the exhibits on April 28, 1993.
The SFWMD presented the testimony of three witnesses: Carlos de Rojas, who was accepted as an expert in surface water management permitting and hydrology; Randy Grau, an environmental supervisor with FDER who was accepted as an expert in the designation of Outstanding Florida Waters and the application of water quality standards to those waters; and Paul Mitchell, a registered professional engineer and the director of operations and engineering for the Florida Keys Aqueduct Authority, who was accepted as an expert in the design, permitting and construction of surface water management systems and in the construction, testing and installation of injection wells. The SFWMD offered nine exhibits into evidence (District Exhibit Nos. A-I,) all of which were accepted.
Petitioner and Intervenor each testified at the hearing. The Intervenor also presented the testimony of Philip Childs, who was accepted as an expert in surface water management system design and shallow injection well design and operation. Petitioner and Intervenor jointly had 20 exhibits marked during the course of the hearing (Petitioner's Exhibits 1-22; Petitioner's Exhibits 12 and
19 were withdrawn and not marked at the hearing.) Petitioner's Exhibits 11 and
22 were accepted into evidence. Petitioner's Exhibit 21 was accepted solely for the purpose of establishing some of the documents relied upon by Intervenor's expert. None of the remaining Petitioner's Exhibits were accepted except Petitioner's Exhibit 8. Prior to the hearing, Petitioner submitted a videotape which purported to reflect certain construction activity undertaken at the site. At the hearing, Petitioner and Intervenor requested that the videotape be marked and accepted into evidence as Petitioner's Exhibit 8. Both the Navy and the SFWMD objected to the relevancy of the videotape and to the verbal commentary that was contained on the tape. As set forth in an Order entered on December 24 and further explained at the hearing, the penalties or sanctions which can or should be imposed as a result of initiation of construction without a final permit and/or for violation of the permit conditions are beyond the scope of this proceeding. Accordingly, Petitioner's Exhibit 8 has been reviewed and considered solely for the reasons set forth in the December 24 Order.
Prior to the hearing, the parties entered into a Joint Prehearing Stipulation which identified the exhibits and witnesses each party intended to rely upon during the hearing. The Intervenor's expert witness and three of the Petitioner's exhibits marked at the hearing were not listed in the Joint Prehearing Stipulation and were not disclosed until 48 hours prior to the hearing. The SFWMD and the Navy objected to the expert witness' testimony and the exhibits which were not disclosed in the Joint Prehearing Stipulation.
After hearing argument from the parties and considering all of the circumstances, including the limited time available to complete discovery, the Intervenor's expert was allowed to testify and the exhibits were accepted into evidence as noted above. Respondents were granted an opportunity to supplement the record in this case to address the issues raised in the testimony and exhibits. A Notice of Supplementing the Record was filed by the SFWMD of February 5, 1993. That Supplement has been reviewed and considered in the preparation of this Recommended Order.
After the parties presented their cases, members of the general public were allowed to testify in accordance with Rule 60Q-2.025(2), Florida Administrative Code. Testimony was presented by seven members of the public.
By agreement of all parties, official recognition has been taken of Chapter 373, Florida Statutes, the technical permit criteria contained in Chapter 17- 302, Florida Administrative Code, and the surface water management permit criteria contained in Title 40E-4 and 40E-40, Florida Administrative Code.
Prior to the hearing, the Navy filed a Motion for Costs and Attorney's Fees. At the hearing, the parties were permitted to present evidence on this Motion. In addition, the parties were advised that they could address the need for a supplemental hearing on the Motion as part of their post-hearing submittals. Intervenor submitted Intervenor's Response to Respondent's Motion for Costs and Attorney's Fees at the hearing and submitted another copy of that Response by letter dated February 3, 1993 which was filed with DOAH on February 8, 1993. Petitioner filed Petitioner's Response to Respondent's Motion for Costs and Attorney's Fees on February 8, 1993. By letter dated February 26, 1993 and filed with DOAH on March 1, 1993, the Navy withdrew its Motion for Costs and Attorney's Fees with respect to both Petitioner and Intervenor.
Accordingly, no disposition is made in this Recommended Order on that Motion.
The first two volumes of the transcript were filed on February 26, 1993.
Volume III of the transcript of the proceedings was filed on February 16, 1993. In accordance with the agreement reached at the conclusion of the hearing, proposed findings of fact and conclusions of law from the parties were due by March 19, 1993. The SFWMD and the Intervenor submitted their proposals on that date. No proposals have been received from the Petitioner. By letter dated March 17, 1993 and filed with DOAH on March 19, 1993, the Navy advised that it concurred in the proposals submitted by the SFWMD and would not be submitting separate proposals. A ruling on each of the proposed findings of fact submitted by the SFWMD and the Intervenor are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
The SFWMD is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 573, Fla. Stat., and Title 40E, Fla. Admin. Code, as a multi-purpose water management district, with its principal office in West Palm Beach, Florida.
The Navy has proposed construction of a naval housing facility on the Peary Court site (the "Site") in Key West, Florida. The Site is approximately
25.89 acres and will provide 160 housing units for junior enlisted Navy and Air Force personnel and their families. The Site is the center of a larger, 37 acre drainage basin.
The Site was formerly the location of military housing. However, for the past 18 years, the Site had been used by the City of Key West, with the assent of the Navy, for active and passive recreation for city residents. The Site contains a cemetery of historic value and a former military housing structure now being used by the Navy Key West Federal Credit Union with an associated parking area of paved asphalt.
On February 6, 1992, the Navy submitted an application for a Surface Water Management District General Permit for the Project. The proposed surface water management system (the "System") was designed by Rice Creekmore, a registered professional engineer, and his company Johnson, Creekmore, and Fabray. The proposed System utilizes the existing topography and incorporates a number of drainage control mechanisms to manage the run-off from the Site. The
System employs inlets, swales and culverts to direct stormwater run-off into dry detention areas (ponds) for pretreatment prior to discharging into seven 24-inch Class V injection wells (drainage wells). As discussed below, these injection wells must be permitted by the Florida Department of Environmental Regulation ("FDER"). The dry pond areas utilize key ditches, bottom elevation 1.0' NGVD, in order to hydraulically connect all of the dry pond areas together into one dry system prior to overflowing into the drainage wells beginning at elevation 1.5' NGVD. In other words, the detention ponds are interconnected with pipes.
The design includes only one point where run-off would be discharged from the Site during any storm equal to a 25 year, three day storm event. That discharge would occur at the lowest point of the Site at the corner of Eisenhower and Palm. The water would be discharged through a V notch weir (the "Weir") into the City's stormwater system. An existing 12" storm drain line at the discharge point will be replaced by a 13.5" by 22.0" Reinforced Concrete Elliptical Pipe culvert. As discussed in more detail below, the System is designed so as to detain 1" of run-off within the dry detention ponds prior to any discharge through the Weir.
After review of the application and submittals, the SFWMD issued a Notice of Intent to issue General Permit and Stormwater Discharge Certification No. 44-00178-S (the "Permit") on September 29, 1992.
Petitioner and Intervenor timely petitioned for an administrative hearing challenging the SFWMD decision to award the Permit. There is no dispute as to the standing of either Petitioner or Intervenor.
The SFWMD has adopted rules that set forth the criteria which an applicant must satisfy in order for a surface water management permit to issue. The criteria are set forth in Rule 40E-4, Florida Administrative Code. Rule
40E-4.301(1)(m) and 40E-4.091(1)(a) incorporate by reference The Basis of Review for Surface Water Management Permit Applications within South Florida Water Management District - April, 1987, ("The Basis for Review"). The Basis for Review explicates certain procedures and information used by the SFWMD staff in reviewing a surface water management permit application. The SFWMD issues general permits for projects of 40 acres or less that meet specific criteria.
All other projects must obtain individual permits which are reviewed by the District Board. The specific rules relating only to general permits are set forth in Rule 40E-40. In addition, the Basis for Review sets forth certain technical requirements which must be met for the issuance of a general permit including general construction requirements and special requirements for wetlands. The Basis for Review also sets forth criteria for how a proposed system should address water quantity and water quality issues. The SFWMD assumes that water quantity and water quality standards will be met if a system satisfies the criteria set forth in the Basis for Review.
Water Quantity Criteria
Rule 40E-4.301(a), Florida Administrative Code, requires an applicant to provide reasonable assurances that a surface water management system will provide adequate flood protection and drainage.
The purpose of the water quantity criteria is to insure that pre- development flows and post-development flows are equal. The SFWMD requires calculations of a project's projected post-development flow to guarantee that the post-development discharge rate will not be in excess of the pre-development discharge rate. These calculations are based on a 25 year, 3 day storm event.
There is no stormwater management system in place at the Project Site. The pre-development topography results in a pre-development discharge point from the Site at the corner of Eisenhower Drive and Palm Avenue. At this point, a discharge or outfall pipe leads into the City of Key West's stormwater management system. The City's system ultimately discharge into Garrison Bight, a nearly waterbody which is discussed in more detail below. At the time the Navy began planning for the Project, the Navy was told that the discharge pipe had a capacity of accepting water at a rate of 40 cubic feet per second ("CFS"). The Navy initially designed a system to utilize this capacity. Subsequently, it was discovered that, due to the size of the pipe at the discharge point and the capacity of the pipes downstream in the City of Key West's stormwater management system, the City would not allow or accommodate a discharge of more than 11 CFS from the Site. Thus, the System had to be redesigned so that the discharge to the City's system would not exceed 11 CFS.
The system was redesigned to incorporate the seven (7) Class V injection wells. The injection wells are intended to insure that discharge from the Project into the City stormwater system through the surface water discharge pipe at Eisenhower Drive and Palm Avenue will not exceed 11 CFS. The injection wells introduce treated stormwater into the ground before it reaches the discharge point.
The pre-development rate of surface water discharge from Peary Court in a 25 year, 72 hour storm event was 55 CFS. This rate was calculated based upon a site survey, a determination of the existing amount of pervious versus impervious surface area, and a calculation made through a generally accepted civil-engineering computer program. 1/ This predevelopment discharge is the amount of water which would be expected to discharge off-site after percolation occurs.
The number and size of the injection wells for the proposed system were determined based upon tests of an on-site twelve-inch fire well. The results of the tests revealed that the on-site test well could manage in excess of 2 CFS. Due to test limitations, the exact capacity could not be measured, but the capacity was clearly more than 2 CFS. These results were then compared with data obtained from the engineering firm of Post, Buckeley, Schuh & Jernigan for installed wells in the Florida Keys of a similar nature and size to the wells in the proposed surface water management system. The Post, Buckeley test results indicated that 24-inch wells had a capacity of 31 CFS. In addition, the design engineer consulted with South Florida Well Drillers, who have drilled other wells in the Florida Keys including 24-inch wells at the Key West airport which were completed shortly before the application for this Project. South Florida Well drillers found the capacity of 24-inch wells in Key West to be in the 25 to 30 CFS range.
Based upon the results of the test well and the related reports described above, the project engineer based his design of the surface water management system on an estimated well capacity of 8.4 CFS for each well. These estimates were submitted by the Navy in its application and were appropriately determined to be reasonable by the SFWMD staff. Indeed, the evidence established that 8.4 CFS was a conservative estimate. The seven injection wells, at an estimated capacity of approximately 8.4 CFS each, provide in excess of 56 CFS of well discharge capacity, which is beyond the necessary discharge volume for the Project.
Limiting Condition No. 13 of the Permit requires the Navy to obtain a well capacity test from a Florida Registered Professional Engineer or
Professional Geologist following the installation of the first Class V injection well at the Site. If the results of this test indicate that the capacity of the well is different than that submitted by the Navy in its application, the Navy must apply for a permit modification to provide a design which incorporates a representative injection well flow-rate and an appropriate number of wells for the Site. In view of the reasonableness of the capacity rates utilized for the wells, it is unlikely that the results of the capacity test will result in any major design change in the proposed surface water management system.
The use of the injection wells in the proposed surface water management system will significantly reduce the amount of run-off which would otherwise reach Garrison Bight from the Site. After the System is completed, it is expected that the amount of run-off from the Site that will reach Garrison Bight will be only 20 percent of the predevelopment amount. In addition, because there has previously been no management of the run-off from the Site and surrounding areas, there has been a frequent flooding problem at the corner of Eisenhower Drive and Palm Avenue after heavy rain storms. The proposed surface water management system will accommodate the overflow of water which historically occurred when discharges from Peary Court and the surrounding areas could not be accommodated by the Key West storm water management system.
Petitioner and Intervenor suggest that the effect of tidal flow on the capacity of the wells was not fully considered. The evidence established that the design engineer considered normal high tides in calculating groundwater elevations. Respondent's engineering experts have concluded that the proposed surface water management system is effectively designed to accommodate the Florida Keys' tidal flows. Petitioner and Intervenor offered no expert testimony to refute this conclusion and/or to establish that the tides would impact the effectiveness of the proposed surface water management system. In the event that an extremely high tide occurs at the time of a storm, the detention ponds may hold standing water for a short time. This water would not be discharged off-site. There is no evidence that tidal influences would in any way adversely affect the System's ability to uptake pollutants in the "first- flush".
The Class V shallow injection wells are an integral part of the proposed Peary Court surface water management system. Without the injection wells it is not clear whether the Project could meet the SFWMD water quantity criteria.
The SFWMD does not have authority to permit Class V injection wells. FDER must permit those wells.
The Peary Court site is not the first Florida Keys' project permitted by the SFWMD which utilizes injection wells. The surface water management permits for the other projects were issued contingent upon obtaining the necessary permits for the injection wells.
Special Condition No. 14 of the Permit provides that the Permit is conditioned on the Applicant obtaining the applicable permits from FDER for the injection wells. During the interim while the Navy is seeking the FDER permits, it should be required to retain all run-off on-site. If the Navy is not able to obtain the necessary FDER permits for the injection wells, the Navy should be required to either retain all run-off on-site or propose an alternate design to meet the SFWMD's water quantity requirements. A modified permit application with a new Notice of Intent should be required for any alternate design.
The following Special Condition Number 14 was offered by the SFWMD at the hearing (language revised from original condition is highlighted and underlined):
THIS PERMIT IS ISSUED BASED ON THE APPLICANT OBTAINING THE NECESSARY CLASS V INJECTION WELL PERMITS FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (FDER). THE PERMITTEE SHALL SUBMIT AN APPROVED CLASS V DRAINAGE WELL PERMIT FROM FDER PRIOR TO OPERATION OF THE SURFACE WATER MANAGEMENT SYSTEM. IN THE INTERIM, THE PERMITTEE SHALL CERTIFY TO THE DISTRICT THAT NO OFF-SITE DISCHARGE WILL OCCUR UNTIL THE APPROVED CLASS V DRAINAGE WELLS ARE IN OPERATION. IF THE SURFACE WATER MANAGEMENT SYSTEM DESIGN MUST BE MODIFIED AS A RESULT OF FDER REQUIREMENTS OR IF THE CLASS V INJECTION WELL PERMITS ARE NOT ISSUED, THE APPLICANT SHALL APPLY FOR A PERMIT MODIFICATION TO PROVIDE A SURFACE WATER MANAGEMENT SYSTEM DESIGN WHICH SHALL MEET DISTRICT CRITERIA IN EFFECT AT THAT TIME.
The proposed additional language requires the Navy to certify that no off-site discharges will occur until the injection wells are permitted and are operating. This revised language should be added to Special Condition No. 14 to clarify that the injection wells must be in operation prior to any off-site discharge from the surface water management system.
Maintenance of the surface water management system entails upkeep of the dry detention areas and routine grass cutting, as well as inspection of the injection wells on a periodic basis to guard against clogging and reduced capacity.
The system is essentially designed to operate without direct surveillance or intervention. Injection wells do not require any additional maintenance over and above that which is routinely required for other types of surface water management systems. The injection wells will require routine maintenance to ensure that manholes and inlets do not become clogged.
Limiting Condition No. 8 of the Permit requires that the surface water management system, including the injection wells, be maintained. At the hearing, the SFWMD proposed that a condition be added to the Permit to further clarify the maintenance requirements. A condition requiring long-term maintenance would be desirable and reasonable. A new special condition should be added to the Permit requiring long-term maintenance of grass swales and inspections of injection wells for clogging. Acceptable language for such a condition would be:
SPECIAL CONDITION NO. 15
The permittee shall provide long-term maintenance of the surface water management system, encompassing the injection wells,
including, but not limited to, (a) maintenance of the vegetation in the grass swales and detention ponds and (b) routine inspections of wells and discharge structures for clogging.
Water Quality Criteria
As noted above, there is no designed system for surface water management and/or water quality pretreatment at the Site in its undeveloped state. Surface water run-off that can not be managed by the City of Key West's storm water management system collects in roads adjacent to the Site, resulting in adverse water quality and quantity impacts to adjacent land and receiving waters.
The applicable water quality criteria, contained in Rule 40E-4.301, Florida Administrative Code, require an applicant to provide reasonable assurances that a surface water management system will not cause adverse water quality impacts to receiving waters and adjacent lands, and will not cause discharge which results in any violation of the standards and criteria of Chapter 17-302 for surface waters of the state. Rule 40E-4.301 provides that: In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system is consistent with the State Water Policy as set forth in Chapter 17-40, Florida Administrative Code (40E-4.301(1)(h), Florida Administrative Code.
Rule 17-40.420 provides in pertinent part:
Minimum Stormwater Treatment Performance Standards.
When a stormwater management system complies with rules establishing the design and performance criteria for stormwater management systems, there shall be a rebuttable presumption that such systems will comply with state water quality standards. The Department and the Districts, pursuant to
Section 373.436, Florida Statutes, shall adopt rules that specify design and performance criteria for new stormwater management systems which:
1. Shall be designed to achieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards.
The Basis for Review, which is incorporated into Title 40E, Florida Administrative Code, by reference, further delineates the applicable water quality permit criteria for surface water management systems. Regarding water quality criteria, the Basis for Review provides:
3.2.2.1 State standards - Projects shall be designed so that discharges will meet state water quality standards, as set forth in Chapter 17-3 [revised to 17-302], Florida Administrative Code.
The SFWMD's water quality criteria do not require chemical testing of stormwater for residential projects.
The SFWMD's water quality criteria require that the design of a surface water management system meet applicable design/technology based criteria.
Section 3.2.2.2 of the Basis for Review contains the specific water quality criteria for the design of a surface water management system.
The SFWMD allows applicants to design their surface water management system using either dry or wet detention or dry or wet retention, so long as the treatment provided by the system meets water quality and quantity criteria.
Dry detention consists of a system of grass swales and vegetative- covered ponds which detain water at a predetermined rate prior to off-site discharge. Wet retention can contain canals, ditches, lakes or ponds to retain water on-site. If a system is designed to meet the criteria specified in 3.2.2.2(a) of the Basis for Review and incorporates Best Management Practices ("BMP's") for the type of system proposed, the SFWMD presumes that water quality standards will not be violated.
In determining which system is appropriate for a particular site, water quantity (flooding impacts) and water quality impacts must be balanced. In some cases, water quantity concerns may preclude certain types of water quality treatment methods.
At the hearing in this case, Petitioner and Intervenor suggested that retention is superior to detention in designing surface water management systems. The evidence presented in this case was insufficient to support this conclusion. In any event, this contention focuses only on water quality considerations. One drawback to retention is that it may have on-site flooding impacts. With respect to this Project, the evidence indicates that retention may not have been an acceptable alternative because of possible adverse water quantity impacts.
The Navy's proposed surface water management system was designed to utilize dry detention with filtration for treatment of surface water prior to discharge into the injection wells and/or off-site. The design uses a system of grass swales and grass-covered detention ponds to detain and filter pollutants from the surface water as it makes its way through the dry detention system.
The System is designed to utilize as many grass swale areas as possible to filter or treat the surface water before it reaches the detention ponds which provide further treatment. The swales restrict the flow of water to approxmiately one half to one foot per second which allows for percolation and a tremendous amount of filtration. The System utilizes the natural topography of the Site to direct water through the dry detention system to the lowest point of the Site at the corner of Eisenhower Drive and Palm Avenue. Any water which makes it to this last detention pond and is not drained into one of the injection wells can flow through the discharge structure (the Weir) at 11 CFS and ultimately make it into Garrison Bight.
Petitioner and Intervenor have suggested that the design of the proposed System is defective because water discharged from the cul-de-sacs in the Project design will flow directly into detention ponds without passing over any of the grass swales. The permit criteria do not specify that all surface water must contact grass swales prior to reaching a detention pond. While
greater filtration is achieved the longer the run-off remains in the system, the evidence established that the detention ponds by themselves provide sufficient water quality treatment. With respect to all but one of the cul-de-sacs, the water must pass through at least two detention ponds before it is discharged.
Run-off from the cul-de-sac closest to the Weir will receive treatment only in the last discharge pond. Petitioner and Intervenor questioned whether the run- off from this last cul-de-sac will receive adequate treatment, in other words, whether the "first flush" will be adequately detained prior to discharge, especially in circumstances when the detention pond is already wet. However, the evidence was insufficient to establish that their concerns are justified and/or that this situation would constitute a violation of water quality standards. This cul-de-sac is only 100 ft in diameter and accounts for no more than 8 percent of the total run-off from the Site. After considering all of the evidence, it is concluded that the water from the cul-de-sacs will be adequately treated in accordance with the permit criteria prior to any discharge.
In assessing the Navy's proposed surface water management system the following criteria from the Basis for Review are pertinent in determining whether the proposed System will provide appropriate water quality treatment:
3.2.2.2
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. . .:
Wet detention volume shall be provided for the first inch of run-off from the developed project, or the total run-off of 2.5 inches times the percentage of imperviousness, whichever is greater.
Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention.
If the receiving waterbody, is a "sensitive receiving water," which would include an Outstanding Florida Water, the following additional criteria regarding direct discharges are applicable:
3.2.2.2
d. Projects having greater than 40 percent impervious area and which discharge directly to sensitive receiving waters shall provide at least one half inch of dry detention or retention pretreatment as part of the required retention/detention.
The SFWMD interprets the permitting criteria as creating a rebuttable presumption that a surface water management system that provides detention in accordance with BMP's of the first inch (1") of run-off from a Site, commonly referred to as the "first-flush", will meet state water quality standards. The "first-flush" occurs at the onset of a rainfall when most pollutants run off paved areas and percolate into the grass swales. It is an accepted design parameter that the "first flush" contains 90 percent of the pollutants which will be collected in the run-off. The 90 percent of the pollutants in the first flush are consequently retained on-site through pure percolation and never reach the discharge facility. Although Petitioner and Intervenor suggest that dry
detention does not provide this degree of filtration, the evidence was insufficient to support this contention.
The proposed System for this Project provides treatment for the first one inch (1") of run-off from the developed Project, thereby meeting the permitting criteria for sensitive receiving waters.
Intervenor and Petitioner contend that the development of this Project will necessarily result in a larger amount of pollutants in the run-off from the Site. They argue that the Applicant has not provided reasonable assurances that capturing 90 percent of the increased level of pollutants in the first flush will meet water quality standards. As noted above, compliance with the permit criteria creates a rebuttable presumption that water quality standards will be met. Insufficient evidence was presented to overcome this rebuttable presumption.
In calculating the appropriate volume for the dry detention ponds, the Project engineer used the Site's percentage of impervious area. The percentage of impervious area was determined in accordance with SFWMD criteria. The calculations do not account for any percolation from the impervious areas even though much of that run-off will pass through swales and other grassy areas of the Site. In addition, there is a built-in buffer between the berm elevation around the ponds and the expected water level in the ponds. These factors confirm that there is significant additional capacity in the ponds which is an overage or safety net.
In sizing the detention ponds, the project engineer also factored in additional off-site water that will be coming on-site from Palm Avenue. This water currently ponds on Palm Avenue contributing to a recurring flooding problem in the area. This off-site water will be routed through an inlet and pumped directly into on-site detention areas thereby reducing flooding on Palm Avenue and providing some treatment for off-site run-off that was not previously treated before entering the City's stormwater system.
As noted above, additional water quality criteria requirements apply to projects which discharge to an Outstanding Florida Water. These additional criteria are set forth in paragraph 40 above.
Outstanding Florida Water or OFW is the designation given exclusively by the FDER to certain waterbodies in Florida which have special significance, either for ecological or recreational reasons. Outstanding Florida Waters are afforded the highest degree of water quality protection.
The criteria for designation of waters as Outstanding Florida Waters is found in Chapter 17-302, Florida Administrative Code.
When the SFWMD initially reviewed the Permit application for this Project, it erroneously assumed that Garrison Bight, the ultimate receiving body for the waters discharged from the project through the City stormwater system, was an OFW. Although the SFWMD applied water quality criteria for OFW's when it reviewed the subject permit application, the evidence at the hearing in this case established that Garrison Bight is not an Outstanding Florida Water.
A FDER representative, qualified as an expert in the designation of Outstanding Florida Waters, testified that the Outstanding Florida Water designation does not apply to certain waterbodies that were degraded at the time of designation or did not have the significance or pristine water quality that
merit special protection. The designation also does not apply to artificial waterbodies. Artificial waterbodies are defined in Rule 17-302.700(9)(i), Florida Administrative Code, as a waterbody created by dredging or excavation or by the filing in of its boundaries on at least two sides. The FDER has formally determined that Garrison Bight is not an Outstanding Florida Water because Garrison Bight is an artificial waterbody in accordance with the definition.
Furthermore, Garrison Bight is the site of extensive boating and marina activities. The water quality of Garrison Bight is currently degraded in comparison to ambient conditions and offshore/unconfined water.
In sum, the evidence established that proposed surface water management system meets or exceeds the current permit criteria. Consequently, the water flowing into Garrison Bight from the Site will be significantly less and much cleaner after the proposed surface water management system is installed than it currently is without a designed surface water management system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.
As the applicant in this case, the Navy bears the burden of showing its entitlement to the requested permit by the preponderance of the evidence. Fla. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).
At the hearing, the Respondents stipulated to Petitioner's and Intervenor's standing.
The SFWMD is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of surface water management system rules and regulations pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Chapter 17-40 and Title 40E, Florida Administrative Code. The jurisdiction of the SFWMD extends to surface water management systems in the Florida Keys.
Section 373.413(1), Florida Statutes, gives the SFWMD the authority to require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, drain, impoundment, reservoir, appurtenant work, or works will comply with the provisions of Chapter 373, Part IV, Florida Statutes, and applicable rules promulgated pursuant thereto, and will not be harmful to the water resources of the SFWMD.
A stormwater management system is defined in Subsection 373.403(10), Florida Statutes (1991) as follows:
(10) "Stormwater management system" means a system which is designed and constructed or implemented to control discharges which are methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.
The issuance of the Permit must be based solely on compliance with applicable permit rules. Council of the Lower Keys v. Toppino, 429 So.2d 67 (Fla. 3rd DCA 1983). For purposes of this proceeding, the rules and regulations promulgated under Chapter 373, Florida Statutes, must be applied in determining whether a surface water management system will meet state water quality standards. 2/
Chapter 40E, Florida Administrative Code, incorporates the Basis for Review which sets forth the applicable water quality permit criteria for surface water management systems. There is a rebuttable presuption that a permit application meets state water quality standards if the design of the system conforms with the criteria specified in Rule 40E-4, Florida Administrative Code and the Basis for Review. See Rule 17-40.420(4)(a), Florida Administrative Code.
Chapter 40E-40 governs the issuance of general permits. Rule 40E- 40.302(1)(b), Florida Administrative Code, states that in order to qualify for a general permit, the permittee must give reasonable assurances that the surface water management system meets the criteria specified in Rule 40E-4.301, Florida Administrative Code.
Rule 40E-4.301(1)(b), Florida Administrative Code and Section 3.2.2 of the Basis for Review state that in order to obtain a surface water management permit, an applicant must give reasonable assurances that the surface water management system will not cause adverse water quality impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, Florida Statutes. Reasonable assurances are given by providing treatment of surface water in the volume specified in Section 3.2.2.2.a., of the Basis for Review. Section 1.3 of the Basis for Review, states that the criteria contained therein are flexible with the primary goal of meeting SFWMD water resource objectives. Thus, performance criteria are used where possible. The reasonableness of the required assurances depends on facts particular to each case, including the size, hydrology and other physical features of the project area. Booker Creek Preservation, Inc. v. Mobil Chemical Company, 481 So.2d 10 (Fla. 1st DCA 1985). In other words, "reasonable assurances" must be viewed in context with the potential harm to the natural resources.
The design of the proposed surface water management system provides dry detention for the first one inch (1") of run-off from the developed Project thereby meeting the requirements of Section 3.2.2.2.a.2., of the Basis for Review. Garrison Bight is not an OFW, as determined by the FDER. Therefore, the water quality standards for Outstanding Florida Waters do not apply to this Project. Nonetheless, the evidence indicates that the proposed system would meet the OFW standards.
By a preponderance of the credible and accepted evidence, the Navy has demonstrated that its proposed surface water management system complies with all criteria set forth in Rule 40E-4.301 as well as relevant statutory provisions. Petitioner and Intervenor have not overcome the presumption that a system that meets that permit criteria will satisfy water quality standards as set forth in Chapter 17-302, Florida Administrative Code.
The requirement that an applicant provide "reasonable assurances" does not mean an applicant must provide an absolute guarantee that the applicable standards and criteria will not be violated. The more persuasive evidence in this case established that violations of the water quality standards for
Garrison Bight are unlikely because of the extensive dry detention system and the seven Class V injection wells which will limit the volume of any off-site discharge and provide pretreatment to any such discharge.
Petitioner and Intervenor argue that dry detention, per se, does not provide adequate pretreatment to meet state water quality standards. The evidence was insufficient to support this conclusion.
Petitioner's expert relied upon a 1985 report by Camp, Dresser and McKee which opined that dry detention will not meet state water quality standards. Insufficient evidence was presented to establish that the tests and theory presented in the Report can be extrapolated to the specific design of the proposed suface water management system. Indeed, the supplementary evidence presented by the SFWMD raises serious questions as the relevance of the Camp, Dresser and McKay Report because it was not predicated upon equivalent test data or field research to compare results of the pretreatment systems.
The water quality issues pertinent to this case center around the design of the proposed surface water treatment system and the impact of discharges from the Project to Garrison Bight. The Class V injection wells that are part of the System function as a water quantity (drainage) assurance. Petitioner and Intervenor attempted to raise several issues regarding the injection wells and their possible effect on groundwater quality. Those issues are wholly within the scope of review of the FDER. No conclusion is reached in this Recommended Order as to whether those wells should be permitted.
Prior to and during the hearing Petitioner and Intervenor raised issues regarding the Navy's alleged premature commencement of construction without a permit and other matters relating to post-permit compliance. Specifically, the Petitioners alleged that the Navy had not complied with certain conditions within the General Permit. As set forth in an Order entered in this case on December 24, 1992 on the SFWMD's Motion to Strike and as explained at the hearing, the issues in this proceeding are limited to whether the Permit should issue. Therefore, the testimony and evidence regarding whether the Navy began construction prematurely and/or whether the Navy has complied with the Permit conditions has been considered only in accordance with the parameters set forth in the December 24 Order.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the issuance of Surface
Water Management General Permit No. 44-01785 in accordance with the Notice of
Intent dated September 29, 1992 and the additional conditions noted in this Recommended Order.
DONE AND ENTERED this 14th day of May, 1993, at Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1993.
ENDNOTES
1/ The same computer model is required by the SFWMD for the design and volume of detention/retention ponds.
2/ The duly promulgated rules of the SFWMD are valid until they are successfully challenged in a rule challenge pursuant to Section 120.56, Florida Statutes. City of Palm Bay v. Florida D.O.T., 558 So.2d 624(Fla. 1st DCA 1991). Thus, whether the presumption created by the permitting criteria is justified cannot be disputed in this case.
APPENDIX
The parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.
The Intervenor's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in the Preliminary Statement and in Findings of Fact 5.
Adopted in substance in the Preliminary Statement and in Findings of Fact 6.
Adopted in substance in Findings of Fact 4.
Subordinate to Findings of Fact 38.
Rejected as a mischaracterization of the testimony.
Rejected as unnecessary.
The first sentence is adopted in substance in Findings of Fact 41. The second sentence is rejected as unnecessary. The remainder of the proposal is subordinate to Findings of Fact 38.
Subordinate to Findings of Fact 38.
Rejected as argumentative and unnecessary.
Rejected as unnecessary and subordinate to Findings of Fact 35-36.
Subordinate to Findings of Fact 30, 33, 35, 36 and 43.
Rejected as unnecessary. This subject matter is addressed in Conclusions of Law 62.
Adopted in substance in Findings of Fact
30 and 41.
The first sentence is rejected as irrelevant. The remainder is subordinate to Findings of Fact 38.
Rejected as unnecessary.
Subordinate to Findings of Fact 43 and Conclusions of Law 63 and 64.
Rejected as unnecessary. This subject matter is addressed in Conclusions of Law
63 and 64.
Addressed in the Preliminary Statement.
Addressed in Conclusions of Law 63 and 64.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in Findings of Fact 1.
Adopted in substance in Findings of Fact 2.
Adopted in substance in Findings of Fact 3.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 5.
Rejected as unnecessary.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact 9.
Adopted in substance in Findings of Fact 10.
Adopted in substance in Findings of Fact 12.
Adopted in substance in Findings of Fact
10 and 11.
Subordinate to Findings of Fact 16.
Adopted in substance in Findings of Fact 19.
Subordinate to Findings of Fact 18.
Adopted in substance in Findings of Fact
20.
Subordinate to Findings of Fact 21.
Adopted in substance in Findings of Fact 22.
Adopted in substance in Findings of Fact 23.
Adopted in substance in Findings of Fact 26.
Adopted in substance in Findings of Fact 24.
Adopted in substance in Findings of Fact 25.
Adopted in substance in Findings of Fact 13.
Adopted in substance in Findings of Fact 14.
Adopted in substance in Findings of Fact 15.
Adopted in substance in Findings of Fact 17.
Adopted in substance in Findings of Fact 16.
Adopted in substance in Findings of Fact
10 and 27.
Adopted in substance in Findings of Fact 51.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 28.
Adopted in substance in Findings of Fact 29.
Adopted in substance in Findings of Fact 34.
Adopted in substance in Findings of Fact 30.
Adopted in substance in Findings of Fact 31.
Adopted in substance in Findings of Fact 33.
Subordinate to Findings of Fact 34.
Adopted in substance in Findings of Fact 34.
Adopted in substance in Findings of Fact 35.
Adopted in substance in Findings of Fact 37.
Adopted in substance in Findings of Fact 37.
Adopted in substance in Findings of Fact
10 and 37.
Adopted in substance in Findings of Fact
10 and 37.
Subordinate to Findings of Fact 38.
Adopted in substance in Findings of Fact
39.
Adopted in substance in Findings of Fact 40.
Adopted in substance in Findings of Fact 42.
Adopted in substance in Findings of Fact 44.
Adopted in substance in Findings of Fact 45.
Adopted in substance in Findings of Fact 41.
Adopted in substance in Findings of Fact 41.
Adopted in substance in Findings of Fact
40 and 46.
Adopted in substance in Findings of Fact 47.
Adopted in substance in Findings of Fact 48.
Subordinate to Findings of Fact 50.
Adopted in substance in Findings of Fact 50.
Adopted in substance in Findings of Fact
49 and 50.
Adopted in substance in Findings of Fact
49 and 50.
COPIES FURNISHED:
Tilford C. Creel, Executive Director DER Water Management Districts
P. O. Box 24680
West Palm Beach, Florida 33416
John J. Fumero, Esquire
South Florida Water Management District 3301 Gun Club Road
P. O. Box 24680
West Palm Beach, Florida 33416-4680
Steven Beverly, Esquire Department of the Navy
Southern Division Naval Facilities 2155 Eagle Drive
P. O. Box 10068
Charleston, S.C. 29411-0068
George Halloran
16B Hilton Haven Drive Key West, Florida 33040
Robert R. Kunkel
Key West Law Office, P.A.
444 Whitehead St.
Key West, Florida 33040
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= SFWMD AGENCY FINAL ORDER
=================================================================
BEFORE THE GOVERNING BOARD
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
GEORGE HALLORAN,
Petitioner,
and
ROBERT KUNKEL, DOAH CASE NO. 92-6254
G.B. ORDER NO. 93-33
Intervenor,
vs.
UNITED STATES DEPARTMENT OF THE NAVY and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/
FINAL ORDER
On May 14, 1993, Hearing Officer J. Stephen Menton, Division of Administrative Hearings, submitted to the South Florida Water Management District ("District") and all other parties to this matter, a Recommended Order, a copy of which is attached hereto as Exhibit "A." Intervenor, Robert Kunkel, filed eighteen (18) exceptions to the Recommended Order which were joined in by Petitioner, George Halloran. Respondent, United States Department of the Navy, filed one exception. District staff filed a response to the exceptions. All of these pleadings were timely filed and are a part of this record. This matter thereafter came before the Governing Board of the District on June 10, 1993, for final agency action.
BACKGROUND STATEMENT
This matter arises out of a challenge brought by Petitioner, George Halloran and Intervenor, Robert Kunkel (collectively referred to as "Petitioners") against the District's authorization of a Surface Water Management General Permit for the proposed Peary Court Naval Housing Facility located in Key West, Florida. The Petitioners' challenge resulted in a formal administrative hearing conducted by state appointed Hearing Officer J. Stephen Menton on January 27-28, 1993, in Key West, Florida. Through a Recommended Order dated May 14, 1993, the Hearing Officer recommended that the permit be issued with additional conditions.
ABBREVIATIONS
Navy United States Department of the Navy
District South Florida Water Management District Petitioners George Halloran and Robert Kunkel [Vol., p.] Citation to Hearing Transcript
Volumes and Pages
Basis of Review Basis of Review for Surface Water
Management Permit Applications within SFWMD - April 1987
FOF Hearing Officer Menton's Finding of Fact
COL Hearing Officer Menton's Conclusion of Law
RULINGS ON NAVY'S AND PETITIONERS' EXCEPTIONS TO THE RECOMMENDED ORDER
GOVERNING BOARD'S STANDARD OF REVIEW FOR FINDINGS OF FACT
Before examining the exceptions flied in this proceeding, it is critical to understand the Governing Board's standard of review. As a matter of law, Section 120.57(1)(b)10, Fla. Stat., prohibits the Governing Board from rejecting or modifying a hearing officer's finding of fact unless it determines from reviewing the entire record that there is no competent substantial evidence to support the finding. Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); National Industries, Inc. v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). Competent, substantial evidence has been deemed as "such evidence as is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1975); Gould v. Division of land Sales, 477 So.2d 612 (Fla. 1st DCA 1985). The decision to accept one expert's testimony over that of another is left to the discretion of the hearing officer and cannot be altered absent a complete lack of competent, substantial evidence from which the finding could reasonably be inferred. Fla. Chapter of Sierra Club v. Orlando Utility Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). The sufficiency of the facts required to form the opinion of an expert must normally reside with the expert himself and any deficiencies in the facts required to form an opinion relate to the weight of the evidence. Gershanik v. Dept. of Professional Regulation, 458 So.2d 302 (Fla. 3d DCA 1984), rev. den. 462 So.2d 1106 (Fla. 1985); H. K. Corp. v. Estate of Miller, 405 So.2d 218, 219 (Fla. 3d DCA 1981). Therefore, any exceptions which assert that a finding is "contrary" to evidence presented should not be granted unless there is no competent, substantial evidence within the record to support the Hearing Officer's finding.
Ruling on Navy's Exception to Finding of Fact No. 11
The Navy takes exception to the last sentence of Finding of Fact No. 11 on two grounds: (1) that the finding is not supported by competent, substantial evidence in the record and (2) that the finding is inconsistent with other factual findings contained in the Recommended Order. As previously stated, the only proper basis for overturning a finding is if it is not based upon competent, substantial evidence in the record. Section 120.57(1)(b)10, Fla.
Stat. The last sentence of Finding of Fact No. 11 provides that "The injection wells introduce treated stormwater into the ground before it reaches the discharge point." This finding implies that water flows into the wells prior to reaching the offsite discharge point. Review of the record at Vol. I, p. 135- 137, establishes that some water will discharge offsite prior to any water entering the injection wells. Water will begin discharging into the injection wells when water depth in the ponds reaches six inches (6") in depth. There is no evidence in the record to infer that all runoff will discharge into the wells prior to discharge offsite. The competent, substantial evidence in the record provides that: Treated water will discharge offsite prior to any discharge into the injection wells. Water will begin entering the injection wells when the water level in the ponds reaches six inches (6") in depth. We therefore accept this exception, but note that this has no bearing on the recommendation in this case. The last sentence of Finding of Fact No. 11 is hereby modified to reflect this record evidence.
Ruling on Petitioners' Exceptions to Findings of Fact Nos. 4, 37 and 44
In their Exceptions to Findings of Fact Nos. 4, 37 and 44, Petitioners assert that the Hearing Officer erred in his finding that the surface water management pretreatment areas are "dry detention areas. The Hearing Officer further found that the Petitioners failed to provide sufficient evidence to support their contention that a dry detention system will not meet state water quality standards. Evidence in the record clearly elaborates that due to the low groundwater elevations on the site, the detention ponds meet dry detention criteria. (Vol. II, pp. 418-420) Unrefuted expert testimony established that the surface water management system design is a dry detention system as opposed to a wet detention system. (Vol. I, pp. 128, 168, 171, 176; Vol. II, pp. 254,
302, 303, 382, 448). Because there is competent, substantial evidence in the record to support this finding, the Petitioners' exceptions to Findings of Fact Nos. 4, 37, and 44 are rejected.
Ruling on Petitioners' Exceptions to Findings of Fact Nos. 16 and 27
These exceptions seek to reject Findings of Fact Nos. 16 and 27 on the basis that they are "irrelevant and prejudicial."
Under the standard of review provided in Section 120.57(1)(b)10, Fla.
Stat., the Governing Board may not reject or modify a finding of fact unless it first determines that there is no competent, substantial evidence found in the record which would support the finding. The Governing Board may not reject a finding of fact on the sole basis that it is irrelevant or prejudicial.
Notwithstanding, Findings of Fact Nos. 7 and 9 of the Recommended Order establish that both water quantity and water quality issues must be considered and addressed by the proposed surface water management system. Neither of these findings were excepted by Petitioners. Findings of Fact Nos. 16 and 27 are therefore entirely relevant and not prejudicial. The water quantity and quality
findings are supported by competent, substantial evidence. The need to consider both factors is essentially undisputed. Therefore, the exceptions are rejected.
Ruling on Petitioners' Exception to Finding of Fact No. 36
Exception is taken to Finding of Fact No. 36 in which the Hearing Officer concluded that the Petitioners did not present sufficient evidence to support their contention that, from a water quality standpoint, "retention" is superior to "detention" in designing a surface water management system. In essence, Petitioners argue that their witness' testimony should have been accepted by the Hearing Officer over the testimony presented by the District's and Navy's experts. This exception goes to the weight and credibility of the evidence itself. The Governing Board is not free to re-weigh conflicting evidence, judge the credibility of witnesses or otherwise interpret the evidence, but rather is limited to determining whether competent, substantial evidence exists in the record to support the Hearing Officer's finding. South Florida Water Management District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984); Smith v. Dept. of Health and Rehabilitative Services, 555 So.2d 1254 (Fla. 3d DCA 1989); Howard Johnson Co. v. Kilpatrick, 501 So.2d 59,60 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Our review of the record indicates that the Hearing Officer based his determination on competent, substantial evidence in the record. (District's Supplement to the Record; Richard Rogers Affidavit.) 1/ We, therefore, reject this exception.
Ruling on Petitioners' Exception to Finding of Fact No. 41
In Finding of Fact No. 41, the Hearing Officer found that 90 percent of pollutants are contained in the first one inch (1") of runoff from a site. He further found that 90 percent of the pollutants in a first flush are retained on site through pure percolation into the ground. These pollutants then never reach the surface water discharge facility. These findings are based upon the testimony and evidence presented by the Navy's design engineer and the District permit reviewer; both were accepted as experts in surface water management and drainage by the Hearing Officer. On the other hand, the Hearing Officer determined that Petitioners failed to present evidence of sufficient weight and credibility to rebut this determination. Again, this exception goes to the weight and credibility of the evidence presented at the Hearing, as determined by the Hearing Officer, and may not be overturned by the Governing Board absent a lack of competent, substantial evidence. (See caselaw cited in ruling on Exception to Finding of Fact No. 36.) We conclude there is competent, substantial evidence in the record to support the Hearing Officer's finding in Vol. I, pp. 87, 95, 148, 149,287; Vol. II, pp. 451-453. Therefore, this exception is rejected.
Ruling on Petitioners' Exception to Finding of Fact No. 43
Petitioners allege that all but the first sentence of Finding of Fact No.
43 is "contrary to the evidence presented." The Hearing Officer found that the evidence presented by the Petitioners failed to overcome the rebuttable presumption created once an applicant complies with District water quality permit criteria. Compliance with the best management practices set forth in District permit criteria creates a presumption that state water quality standards will be met. Evidence presented through the expert testimony of the Navy and District witnesses testified that the applicant met the District's surface water management permit criteria. (Vol. I, pp. 99, 101, 121, 122, 124, 170.) The burden then shifted to Petitioners to show how and why permit criteria and the associated reasonable assurances were not provided. J.W.C. v.
Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). Petitioners failed to carry this burden. It is significant to note that Petitioners' own expert witness, Philip Childs, testified that, in his opinion, the applicant had met applicable water quality permit criteria. (Vol. III, p. 179.) Based upon the existence of competent, substantial evidence in the record, this exception is rejected.
Ruling on Petitioners' Exception to Finding of Fact No. 51
The Petitioners take exception to the Hearing Officer's finding that "the proposed surface water management system meets or exceeds the current permit criteria." The Petitioners take exception to this finding on the basis that the District did not require 1) mosquito control ditches and 2) legal reservation of water management areas.
As to that portion of the exception discussing mosquito control ditches, the exception is rejected because the surface water management permit criteria in Section 3.2.4.3.b., Basis of Review, does not require that mosquito control ditches be provided or designed. The District's rule on mosquito control ditches does not require that they be designed or provided, only that they be incorporated into a proposed system if they are present at the project site.
There is nothing in the record which refutes this interpretation of the agency rule. However, there is competent, substantial evidence in the record at Vol. III, pp. 117-119 and Vol. II, pp. 401, that all applicable water quality permit criteria have been met.
As to the issue concerning legal reservation of water management areas, we conclude that this exception is addressed by an additional permit condition which was presented to the Governing Board during our consideration of the Recommended Order, but note that this has no bearing on the recommendation in this case. Therefore, the following condition shall become a permit special condition to Surface Water Management General Permit No. 44-00178-S:
WITHIN 60 DAYS AFTER COMPLETION OF CONSTRUCTION, THE APPLICANT SHALL LEGALLY RESERVE THE SURFACE WATER MANAGEMENT AREAS TO THE OPERATION ENTITY FOR THE INTENDED PURPOSE BY DEDICATION, DEED RESTRICTIONS, EASEMENTS
OR OTHER MECHANISM ACCEPTABLE TO THE DISTRICT.
GOVERNING BOARD'S STANDARD OF REVIEW FOR CONCLUSIONS OF LAW
In addition to providing recommended findings of fact, hearing officers also present conclusions of law and interpretations of agency rules for the agency's consideration. These recommendations are interpretations of law and policy and are submitted for consideration only to the Board. While the assigned hearing officer is in a position of ruling on the evidence presented, the hearing officer's conclusions of law are not entitled to the same consideration when the recommendations are interpretations of agency policy, rules or law within the ambit of the agency's expertise. Courts have held that "matters infused with overriding policy considerations are left to the agency's discretion." Baptist Hospital, Inc. v. State Department of Health and Rehabilitative Services, 500 So.2d 620, 623 (Fla. 1st DCA 1986). However, an agency should not overturn or substitute a conclusion of law unless there are findings of fact which support the revised interpretations of law or policy.
Id.
Ruling on Petitioner's Exception to Conclusion of Law No. 61
In this exception, Petitioners assert that the Hearing Officer erred in his interpretation of what constitutes "reasonable assurances" in the context of surface water management permitting. We disagree. Conclusion of law No. 63, when read in conjunction with Conclusion of law No. 61, clarifies that compliance with the District's surface water management permit criteria creates a rebuttable presumption that state water quality standards will be met and the associated reasonable assurances have been provided. The burden is then placed upon the Petitioner to rebut this presumption. Petitioners failed to carry this burden.
In the case cited by Petitioners, Metropolitan Dade County v. Coscan, 14 FALR 5053, 5058 (1992), the court held that a hearing officer must examine an applicant's proposal to determine whether the project provides the reasonable assurances called for by the statute. The District does not dispute that all applicants must meet this burden. The detail and level of information to meet this burden is what can differ from project to project. Booker Creek Preservation, Inc. v. Mobil Oil Company, 481 So.2d 10 (Fla. 1st DCA 1985).
Coscan is therefore not relevant to the issue at hand.
The rules adopted by the District, specifically Rule 40E-4.301(1)(b), Fla.
Admin. Code, and Section 3.2.2 of the Basis of Review, state that in order to obtain a surface water management permit, an applicant must provide reasonable assurances that the surface water management system will not cause adverse water quality impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, Fla. Stat. Compliance with the criteria set forth in the Basis of Review creates a presumption that state water quality standards will not be violated. Petitioner plainly asserts the District's Basis of Review "does not control this case." Coscan, however, does not support the Petitioners' assertion. Coscan merely provides a legal definition for reasonable assurances, nothing more. The District requires compliance with its permit criteria (which includes the Basis of Review) in implementing the surface water management permitting program. Based upon our review of the record and as indicated by our rulings on these previous exceptions, this exception to the Hearing Officer's Conclusion of Law is rejected.
Ruling on Petitioners' Exception to Conclusions of Law Nos. 62 and 64
Referring back to their exception to Finding of Fact No. 4, Petitioners again contend that the proposed surface water management system does not provide "dry detention." As discussed in our ruling on Findings of Fact Nos. 4, 37 and 44, there is competent, substantial evidence in the record which supports the Hearing Officer's conclusion that the system designed by the Navy is a dry detention system. Therefore, it follows that the Hearing Officer did not err in basing his Conclusion of Law on these facts.
The Hearing Officer also found, as supported by evidence in the record, that the system design provided dry detention for the first one inch (1") of runoff from the developed project. He concluded that, although Garrison Bight is not an Outstanding Florida Water ("OFW"), the evidence indicated that the system would meet the District's OFW water quality criteria. These conclusions cannot be rejected as they are based upon sound legal conclusions and findings which are supported by the record. Therefore, the exceptions to Conclusions of law Nos. 62 and 64 are rejected.
Ruling on Petitioners' Exception to Conclusion of Law No. 63
In this conclusion of law, the Hearing Officer determined that the proposed surface water management system complies with the applicable permit criteria set forth in Rule 40E-4.301, Fla. Admin. Code, as well as applicable statutory requirements. As in their exception to Finding of Fact No. 51, Petitioners contend that this conclusion is in error because 1) the proposed surface water management system does not utilize mosquito control ditches and 2) all water management areas must be legally reserved. It is the Governing Board's determination that the system does comply with the criteria because, as set forth in our ruling on Exception to Finding of Fact No. 51, incorporated herein by reference, 1) the District's criteria only requires that mosquito control ditches be incorporated into the design of the surface water management system if they are present at the project site, and 2) a condition addressing legal reservation of water management areas is added to the permit.
Based on the competent, substantial evidence from which the Hearing Officer drew this legal conclusion that the proposed surface water management system met applicable surface water management criteria and under the Governing Board's interpretation of its rules, as stated above, there is no legal basis upon which to overturn the Hearing Officer's finding. Therefore, for the reasons cited above and our ruling on the exception to Finding of Fact No. 51, the exception to Conclusion of law No. 63 is rejected.
Ruling on Petitioners' Exception to Conclusion of Law No. 65
This exception relates to whether dry detention provides adequate treatment to meet state water quality standards. The Hearing Officer found in this conclusion that the Petitioners had not presented sufficient evidence to support their assertion that dry detention is an inadequate treatment process. J.W.C.
v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). As with many of the Petitioners' exceptions, this exception goes to the weight and credibility of the evidence as determined by the Hearing Officer and should not be disturbed. The Hearing Officer considered all testimony and evidence presented by the Petitioners and found that the evidence presented was not sufficient to support their conclusions. Petitioners have presented no valid legal or factual argument as to why the Governing Board should disregard the Hearing Officer's determination. Therefore, this exception is rejected.
Ruling on Petitioners' Exception to Conclusion of Law No. 66
Petitioners' expert, Philip Childs, testified regarding the 1985 CDM Report which he had reviewed only four days prior to the hearing. He relied upon the findings in the report to support his opinion that dry detention was not the most effective way to remove pollution and sediments from surface waters.
The evidence submitted by the Petitioners was rebutted by the testimony of the Navy and District experts. The Hearing Officer made a determination based upon the credibility and weight of the expert testimony and other evidence presented in this case. Based upon the foregoing, the Hearing Officer determined that the 1985 CDM Report was insufficient evidence upon which to evaluate the Navy's proposed surface water management project design. The Hearing Officer's conclusion was also based upon supplementary evidence submitted in the record which revealed that the Report was not predicated upon verifiable test data or field research. Caselaw in Florida has unequivocally found that a Hearing Officer has the sole discretion, as trier of fact, to
consider and weigh evidence and testimony submitted by the Parties. Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); National Industries, Inc. v.
Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988); Freeze v. Dept. of business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990).
Petitioners' exception, in effect, is a challenge to the District's rules and criteria and not to the application of the criteria in this case. Even the title of the Intervenor's evidence, "General Changes to SFWMD Basis of Review", makes clear that it is the rule itself which is being challenged. A rule may not be challenged in a Section 120.57, Fla. Stat., proceeding. DeGroot v.
Sheffield, 95 So.2d 912 (Fla. 1975); Gould v. Division of land Sales, 477 So.2d 612 (Fla. 1st DCA 1985). There is no factual or legal basis for overturning this Conclusion; therefore, this exception is rejected.
Ruling on Petitioners' Exception to Recommendation
The Hearing Officer made a Recommendation that a Final Order be entered approving the issuance of Surface Water Management General Permit No. 44-0178, with the inclusion of two additional conditions contained in the Recommended Order. The Petitioners' exception to this Recommendation is based solely upon the exceptions responded to above. The Petitioners' have failed to demonstrate that the Findings of fact or conclusions of law contained in the Recommended Order should be rejected to the extent that the overall recommendation is affected. All findings underlying the recommendation are based upon competent, substantial evidence and sound conclusions of law. Reviewing the record as a whole, we find no error on the part of the Hearing Officer in applying both the statutory and regulatory criteria for issuance of a surface water management permit. Therefore, this exception to the Recommendation is rejected.
Ruling on Petitioners' Exceptions to Hearing Officer's Rulings on Proposed Findings of Fact
The Petitioners suggest the Governing Board adopt a finding that percolation tests on ponds or mosquito control ditches were not required. Petitioners cite no law or rule which would lead one to conclude that these tests are required by District permit criteria. Thus, the Hearing Officer's ruling that Petitioners' proposed Finding of Fact No, 12 is unnecessary based on Conclusion of Law No. 62 is correct. In Conclusion of Law No. 62 the Hearing Officer found the project met water quality criteria.
The Petitioners also suggest that the Governing Board adopt a finding that the 1985 CDM Report submitted to the Florida Department of Environmental Regulation concluded that detention with filtration is ineffective as compared to wet retention or detention. The Hearing Officer's ruling that Petitioners' proposed Finding of Fact No. 17 is unnecessary is correct, based on Conclusions of law Nos. 63 and 64. The Hearing Officer concluded in Conclusion of law Nos.
63 and 64 that the weight of the evidence proved that the applicant met all applicable criteria and statutes. To put it simply, the record before us discloses no basis whatsoever for accepting Petitioners' proposed findings of fact.
For the above reasons, Petitioners' Exceptions to the Hearing Officer's rulings on proposed findings of fact are rejected.
ORDER
WHEREFORE, having considered the Recommended Order entered by the Hearing Officer, the Exceptions filed thereto by the Petitioners and Navy, the Responses to Exceptions filed by District staff and having further reviewed the transcript and record of this proceeding and being otherwise fully advised in the premises:
NOW, THEREFORE, IT IS ORDERED that:
The Navy's Exception to the Recommended Order regarding the modification of Finding of Fact No. 11 is accepted on the ground set forth above. Therefore, Finding of Fact No. 11 is modified to replace the last sentence with the following: Treated water will discharge offsite prior to any discharge into the injection wells. Water will begin entering the injection wells when the water level in the ponds reaches six inches (6") in depth;
The portion of Petitioners' Exception to Finding of Fact No. 51 addressing legal reservation of water management areas is accepted. Special condition no. 16, as set forth below, shall be included in Surface Water Management General Permit No. 44-00178.
The Petitioners' remaining Exceptions to the Recommended Order are denied;
The Hearing Officer's Recommended Order dated May 14, 1993, attached hereto as exhibit "A", is adopted with the above described modifications as the final action of the Governing Board of the South Florida Water Management District, and
Surface Water Management General Permit No. 44-00178-S, attached hereto as Exhibit "B" ,is hereby granted to U.S. Department of the Navy, with the addition of the following permit conditions:
SPECIAL CONDITION NO. 14
THIS PERMIT IS ISSUED BASED ON THE APPLICANT OBTAINING THE NECESSARY CLASS V INJECTION WELL PERMITS FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (FDER). THE PERMITTEE SHALL SUBMIT AN APPROVED CLASS V DRAINAGE WELL PERMIT FROM FDER PRIOR TO OPERATION OF THE SURFACE WATER MANAGEMENT SYSTEM. IN THE INTERIM, THE PERMITTEE SHALL CERTIFY TO THE DISTRICT THAT NO OFFSITE DISCHARGE WILL OCCUR UNTIL THE APPROVED CLASS V DRAINAGE WELLS ARE IN OPERATION. IF THE SURFACE WATER MANAGEMENT SYSTEM DESIGN MUST BE MODIFIED AS A RESULT OF FDER REQUIREMENTS OR IF THE CLASS V INJECTION WELL PERMITS ARE NOT ISSUED, THE APPLICANT SHALL APPLY FOR A PERMIT MODIFICATION TO PROVIDE A SURFACE WATER MANAGEMENT SYSTEM DESIGN WHICH SHALL MEET DISTRICT CRITERIA IN EFFECT A THAT TIME.
SPECIAL CONDITION NO. 15
THE PERMITTEE SHALL PROVIDE LONG-TERM MAINTENANCE OF THE SURFACE WATER MANAGEMENT SYSTEM, ENCOMPASSING THE INJECTION WELLS, INCLUDING, BUT NOT LIMITED TO, (A) MAINTENANCE OF THE VEGETATION IN THE GRASS SWALES AND DETENTION PONDS AND (2) ROUTINE INSPECTIONS OF WELLS AND DISCHARGE STRUCTURES FOR CLOGGING.
SPECIAL CONDITION NO. 16
WITHIN 60 DAYS AFTER COMPLETION OF CONSTRUCTION, THE APPLICANT SHALL LEGALLY RESERVE THE SURFACE WATER MANAGEMENT AREAS TO THE OPERATION ENTITY FOR THEIR INTENDED PURPOSE BY DEDICATION, DEED RESTRICTIONS, EASEMENTS OR OTHER MECHANISM ACCEPTABLE TO THE DISTRICT.
NOTICE OF RIGHTS
CIRCUIT COURT
Any substantially affected person who claims that final action of the district constitutes an unconstitutional taking of property without just compensation may seek judicial review of the action in circuit court pursuant to Section 373.617, Fla. Stat., and the Florida Rules of Civil Procedures, by filing an action within 90 days of the rendering of the final District action.
DISTRICT COURT OF APPEAL
Pursuant to Section 120.68, Fla. Stat., a party to this Order who is adversely affected by final District action may seek judicial review of the action in the appropriate district court of appeal by filing a notice of appeal pursuant to Florida Rule of Appellate Procedure 9.110 with the District Clerk and the appropriate District Court of Appeal within 30 days of the rendering of the final District action.
LAND AND WATER ADJUDICATORY COMMISSION
A party to the proceeding who claims that a District order is inconsistent with the provisions and purposes of Chapter 373, Fla. Stat., may seek review of the final order pursuant to Section 373.114, Fla. Stat., by the Land and Water Adjudicatory Commission ("Commission") by filing a re quest for review with the Commission and serving a copy on the Department of Environmental Regulation and any person named in the final order within 20 days of the rendering of the District order. However, if the final order to be reviewed has statewide or regional significance, as determined by the Commission within 60 days after receipt of a re quest for review, the Commission may accept a re quest for review from any affected person within 30 days after the rendering of the final order.
A District action or order is considered "rendered" after it is signed by the Chairman of the Governing Board, or a duly authorized designee, on behalf of the District and is filed by the District Clerk.
Failure to observe the relevant time frames for filing a petition for judicial review as described above in paragraphs one (1) and two (2) or for Commission review as described in paragraph three (3) will result in waiver in that right to review.
DONE and ORDERED this 17th day of June, 1993.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD
BY: CHAIRMAN
Legal Form Approved SFWMD Office of Counsel
By Date 6-16-93 Corporate Seal)
ATTEST:
By:
ENDNOTE
1/ The District and Navy objected to certain expert witness testimony and the Petitioners' 1985 Camp, Dresser, McKee Report ("1985 CDM Report"), neither of which were disclosed in the Joint Prehearing Stipulation. After hearing argument from the parties and considering all of the circumstances, the Petitioners' expert was allowed to testify and the exhibit was accepted into evidence. Recognizing potential prejudice to the District, the Hearing Officer granted the District an opportunity to supplement the record to address the issues raised by the 1985 CDM Report. The District filed a "Notice of Supplementing the Record" on February 5, 1993. The Hearing Officer reviewed and considered same in the preparation of the recommended order. See Recommended Order, pp. 5-6.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that one original and a true and correct copy of the foregoing has been furnished by Federal Express to the Honorable J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and that true and correct copies of the foregoing have been furnished by Federal Express to Herbert Walker, Esquire, 1207 Florida Street, Key West, Florida 33040, George Halloran, 16B Hilton Haven Drive, Key West, Florida 33040, Robert Kunkel, Esquire, Key West Law Office, P.A., 444 Whitehead Street, Key West, Florida 33040, and Stephen Beverly, Esquire, Department of the Navy, Naval Facilities Engineering Command, 2155 Eagle Drive, P.O. Box 190010, North Charleston, South Carolina 29419-9010, this 17th day of June, 1993.
FILED WITH THE CLERK OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT
ON June 17, 1993
BY Tony Bums
Deputy Clerk District Clerk
================================================================= FLWAC AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
GEORGE HALLORAN, )
)
Petitioner, )
and ) CASE NO. RFR-93-002
) DOAH CASE NO. 92-6254
ROBERT R. KUNKEL, )
)
Intervenor, )
)
vs. )
)
UNITED STATES DEPARTMENT OF )
THE NAVY, and SOUTH FLORIDA )
WATER MANAGEMENT DISTRICT, )
)
Respondents. )
)
FINAL ORDER
This matter came before the Governor and Cabinet sitting as the Florida Land and Water Adjudicatory Commission ("Commission") on Tuesday, September 28, 1993, in a duly convened meeting conducted in Tallahassee, Florida. After due consideration, this order is hereby issued to reflect the Commission's action.
PRELIMINARY STATEMENT
This case concerns an application to the South Florida Water Management District ("District") by the United States Department of the Navy (the "Navy") for a Management and Storage of Surface Water ("MSSW") general permit for a proposed Naval housing facility in Key West, Florida. Petitioner George Halloran ("Halloran") and Intervenor Robert Kunkel ("Kunkel") opposed the issuance of the permit. We granted review of the MSSW permit pursuant to section 373.114, Florida Statutes ("F.S.") (1991).
FINDINGS OF FACT
On July 6, 1993, Kunkel filed a Request For Review with this Commission pursuant to section 373.114, F.S. (1991), seeking a review of a final order of the South Florida Water Management District, Permit No. 4400178S. 1/
The administrative hearing in the case was conducted on January 27-28, 1993, and the Hearing Officer issued his Recommended Order on May 14, 1993, recommending that the permit should be granted.
The Final Order, issued by the District on June 17, 1993, adopted the Hearing Officer's Recommended Order and granted the MSSW permit for a proposed
Naval housing facility located at Peary Court in Key West, with an added condition requiring a legal reservation over the lands on which the surface water management system was to be constructed. The permit also incorporated twelve "standard limiting conditions" and sixteen "special conditions."
On July 26, 1993, the Navy filed a Motion to Dismiss Kunkel's Request for Review. The basis for that Motion is that a recent statutory enactment, codified as Chapter 93-213, which amended section 373.114, F.S., to require four members of the Commission to determine whether the activity authorized would substantially affect natural resources of a statewide or regional significance or that the Final Order raises issues of policy or statutory/rule interpretation having such significance from the standpoint of agency precedent.
Section 26 of Chapter 93-213 provides:
In order for the commission to accept a request for review initiated by a party below, with regard to a specific order, four members of the commission must determine on the basis of the record below that the activity authorized by the order would substantially affect natural resources of statewide or regional significance. Review of an order may also be accepted if four members of the commission determines that the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from the standpoint of agency precedent. The party requesting the commission to review an order must allege with particularity, and the commission must find, that:
The order is in conflict with statutory requirements; or
The order is in conflict with the requirements of a duly adopted rule.
The matter came before this Commission on September 28, 1993, for hearing and disposition. The scope of review for the Commission to consider is whether the issuance of the permit is inconsistent with the provisions and purposes of Chapter 373, F.S.
On August 5, 1993, the Department of Environmental Protection ("DEP") filed a recommendation with the Commission. The DEP recommended that the Commission determine that the District's Final Order is consistent with Chapter 373, F.S.
CONCLUSIONS OF LAW
The MSSW permit issued by the District is plainly an order of a water management district. We have jurisdiction. Section 373.114, F.S.
Chapter 93-213, Law of Florida, provides that the Commission must base a recommendation on whether to accept review of a case "based on the record below." In this case, the record was established prior to the date of the amendments becoming effective, making it impossible for the parties to place into the record facts which would support or rebut a contention that the order would substantially affect natural resources of statewide or regional significance or a contention that this case would raise issues of policy,
statutory interpretation or rule interpretation that have regional or statewide significance from a standpoint of agency precedence. Likewise, the Hearing Officer's Order and the District's Final Order were all rendered prior to July 1, the effective date of the amendments, so that these issues are new to this proceeding.
It is well established in case law that a substantive law is to be construed as having a prospective effect only. This is as opposed to rules which relate to procedure or remedies that are properly applied retroactively to pending cases. Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985). See also, Chandra v. Gadodia, 610 So.2d 15 (Fla. 5th DCA 1992) where the court held that a legislative change was substantive where an amendment required additional evidence be shown, and not procedural nor remedial in nature. Hence, the amendment applied only prospectively.
Chapter 373, F.S., grants this Commission the power to review orders of water management districts to ensure consistency with the purposes and provisions of this chapter. Among the policy goals of this chapter are:
The waters in the state are among its basic resources. Such waters have not heretofore been conserved or fully controlled so as to realize their full beneficial use.
It is further declared to be the policy of the Legislature:
To provide for the management of water and related land resources;
To promote the conservation, development, and proper utilization of surface and ground water;
To develop and regulate dams, impoundments, reservoirs, and other works and to provide water storage for beneficial purposes;
To prevent damage from floods, soil erosion, and excessive drainage;
To minimize degradation of water resources caused by the discharge of stormwater;
To preserve natural resources, fish, and wildlife;
To promote the public policy set forth in s. 403.021;
To promote recreational development, protect public lands, and assist in maintaining the navigability of rivers and harbors; and
Otherwise to promote the health, safety, and general welfare of the people of this state.
Among the policies set forth in Section 403.021, F.S., is:
(6) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property
be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development.
These are broad policy goals, and one of the ways the statute empowers the citizens of the state to challenge actions which may offend these broad policy goals is through the procedures outlined in s. 373.114, F.S. A statutory amendment which enlarges the burden of a petitioner challenging that order and which restricts the scope of review of water management district orders and the ability of the public to challenge those orders is plainly substantive in nature and so should apply prospectively only. Therefore, as the District's intent to issue the permit, the initial challenge, the hearing and the rendition of the Final Order by the District all took place prior to the law being in effect, the new requirements do not apply and the Navy's Motion to Dismiss is DENIED.
The threshold question faced by the Commission in this case is whether the Order is consistent with the provisions and purposes of the chapter. Section 373.114(1), F.S. On appeal, Kunkel argues that it is not, in several instances. First, he argues that it is not consistent with Chapter 373, F.S., because the District has acted inconsistently in this case from how it has acted in other cases, thus violating Florida law and constitutional equal protection guarantees. This contention must be broken into its components. Regarding the constitutional arguments, the Commission does not have jurisdiction over constitutional claims, as they are beyond the scope of review allowable under s. 373.114, F.S. Hawley v. St. Johns River Water Management District, 12 FALR 3058
n.2 (FLWAC RFR-90-004, June 29, 1990), Meyers v. Hawkins, 362 So.2d 926 (Fla. 1978); Gulf Pines Memorial Park v. Oaklawn Memorial Park, 361 So.2d 695, 699 (Fla. 1978); Long v. Dept. of Administration, 428 So.2d 688 (Fla. 1st D.C.A. 1983); Hays v. Dept. of Business Regulation, 418 So.2d 331 (Fla. 3d DCA 1982); Metropolitan Dade County v. Dept. of Commerce, 365 So.2d 432 (Fla. 3d DCA 1978.) Hence, whether there is a constitutional violation is outside the scope of our review.
Regarding the contention that the District violated Florida law, our review is again limited by Chapter 373, F.S. We conclude that the District did not violate the provisions or policies in Chapter 373, F.S., by reviewing the surface management system under "dry" versus "wet" detention criteria, or by allowing legal reservation of the system to be delayed 60 days after construction of the system or by permitting a dry detention system which does not incorporate mosquito control ditches or other appropriate features for mosquito control. All of the District's actions are consistent with Chapter 373, F.S. The legal reservation of 60 days is not problematic because the continued operation of the system as permitted can be enforced against the Navy through permit conditions. Second, the District's rules on dry detention criteria as set forth at Rule 40E-4, Appendix 1, Part II, must be read in conjunction with the District's rule on "Criteria Flexibility". That provision allows the criteria set forth in other sections to be read with flexibility so as to meet the District's primary water resource objectives. Therefore, both
the dry detention system and the mosquito control features, as set forth in the Navy's proposal, are acceptable.
As his second major argument, Kunkel argues that the presumption that the proposed surface water management system will not violate state water quality standards if it complies with design criteria adopted by rule is a "vanishing" or "bursting bubble" presumption. He argues that a party need only put on some proof that the system will violate state water quality standards to make this presumption "vanish." We reject this interpretation. The key here is not that an expert testified that the system would violate state water quality standards, but rather that there was competent and substantial evidence to support the Hearing Officer's conclusions that the system would not violate these standards. Since there was competent and substantial evidence presented that the proposed housing facility would not violate state water quality standards, we must accept these fact findings and not reweigh the evidence. Section 120.68, F.S. See Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Therefore, the presumption here furthers an important public policy and does not vanish as Petitioner urges. The Hearing Officer did not err when he weighed the presumption against the evidence of Petitioner and concluded the presumption was not rebutted.
Kunkel's third major issue on appeal is whether the District erred in not rejecting Findings of Fact 16 and 27. Stated another way, whether the allowance of irrelevant evidence into the record and the agency's failure to reject such evidence constituted unfair prejudice or irreparable harm. The District found that the facts were relevant to the water quality issue, were supported by competent, substantial evidence, and therefore that they could not be rejected. Questions of admissibility of evidence should be in the sound discretion of the trier of fact and should not be overturned unless there is a clear abuse of discretion. Trees by & Through Trees v. K-Mart, 467 So.2d 401 (Fla. 4th DCA 1985) rev. den., 479 So.2d 119 (Fla. 1985). These two Findings of Fact state that the post development storm water run-off will be less than it is currently, pre-development. These facts are relevant to the issue of whether the project will cause water quality violations and, ultimately, is consistent with Chapter 373, F.S. We see no error in the District accepting these facts.
WHEREFORE, the Final Order of the South Florida Water Management District in this cause granting General Permit and Storm Water Discharge Certification #44-00178-5 is AFFIRMED.
DONE AND ORDERED, this 30th day of September 1993, in Tallahassee, Florida.
David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission
FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this 30th day of September 1993.
Clerk, Florida Land and Water Adjudicatory Commission
ENDNOTE
1/ The Navy submitted its application to the District on February 6, 1992, the District notified the Navy of its intent to issue the Permit on September 29, 1992, and Halloran challenged the issuance of the permit on October 14, 1992.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 30th day of September 1993.
DAVID K. COBURN, Secretary Florida Land and Water Adjudicatory Commission
The Honorable Lawton Chiles Division of Administrative Hearings Governor 1230 Apalachee Parkway
210, The Capitol DeSoto Building Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-1550
The Hon. Robert Butterworth Robin S. Hassler, Esquire Attorney General Counsel, FLWAC
PL01, The Capitol Room 210, Capitol Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-0001
The Hon. Bob Crawford The District Clerk
Commissioner of Agriculture South Florida Water Management LL-29, The Capitol District
Tallahassee, Fl 32399-0001 3301 Gun Club Road
West Palm Beach, Fl 33416-4680
The Honorable Gerald Lewis Stephen A. Beverly, Esquire Comptroller Department of the Navy
2001, The Capitol Southern Division Naval Facilities Tallahassee, Fl 32399-0001 2155 Eagle Drive
Charleston, S.C. 29411-0068
The Hon. Tom Gallagher John Fumero, Esquire
Treasurer South Florida Water Management
LL-27, The Capitol District Tallahassee, Fl 32399-0001 3301 Gun Club Road
West Palm Beach, Fl 33416-4680
The Honorable Betty Castor George Halloran Commissioner of Education 16-B Hilton Haven Drive LL-24, The Capitol Key West, Fl 33040 Tallahassee, Fl 32399-0001
The Honorable Jim Smith Robert Kunkel, Esquire Secretary of State Post Office Box 4724
LL-10, The Capitol Key West, Fl 33041 Tallahassee, Fl 32399-0001
Robert Gough, Esquire Florida Administrative Law Office of General Counsel
Report Department of Environmental Post Office Box 385 Protection
Gainesville, Fl 32602 2600 Blair Stone Road, Twin Towers
Tallahassee, Fl 32399-2400
| Issue Date | Proceedings |
|---|---|
| Oct. 05, 1993 | Final Order filed. |
| Oct. 01, 1993 | Final Order filed. |
| Aug. 09, 1993 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Aug. 09, 1993 | Supplemental index to record on appeal filed. |
| Jun. 28, 1993 | Final Order filed. |
| Jun. 18, 1993 | Final Order filed. |
| May 15, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 1/27-28/93. |
| Mar. 19, 1993 | Intervenor`s Proposed Recommended Order filed. |
| Mar. 19, 1993 | Letter to JSM from Stephen A. Beverly (re: PRO) filed. |
| Mar. 19, 1993 | South Florida Water Management District`s Proposed Recommended Order filed. |
| Mar. 18, 1993 | Ltr of Clarification and Confirmation on Due Date for PRO filed. (From Toni M. Leidy) |
| Mar. 05, 1993 | Letter to M. Lockard from H. Powell (re: check enclosed for copying services for transcript) filed. |
| Mar. 01, 1993 | Letter to M. Lockard from H. Powell (re: check enclosed for copying services of transcript) filed. |
| Mar. 01, 1993 | Letter to JSM from Stephen A. Beverly (re: Motion for Costs and Attorney`s Fees) filed. |
| Feb. 26, 1993 | Hearing Transcript (Volumes I - II) filed. |
| Feb. 16, 1993 | Transcript filed. |
| Feb. 08, 1993 | Intervenor`s Response to Respondent`s Motion for Costs and Attorney`s Fees filed. |
| Feb. 08, 1993 | (Respondent) Notice of Supplementing the Record with Affidavit of Statement in Opposition to Expert Witness Testimony filed. |
| Feb. 05, 1993 | Petitioner`s Response to Respondent`s Motion for Costs and Attorney`s Fees filed. |
| Feb. 05, 1993 | (Navy) Exhibits B,C,D, and E filed. |
| Feb. 05, 1993 | Petitioner`s Response to Respondent`s Motion for Costs and Attorney`s Fees filed. |
| Jan. 28, 1993 | CASE STATUS: Hearing Held. |
| Jan. 28, 1993 | CASE STATUS: Hearing Held. |
| Jan. 26, 1993 | (Respondent) Motion for Costs and Attorney`s Fees filed. |
| Jan. 13, 1993 | Order Rescheduling Hearing sent out. (hearing rescheduled for January 27-28, 1993; 9:00am; Key West) |
| Jan. 12, 1993 | Parties Joint Prehearing Stipulation filed. |
| Jan. 11, 1993 | Parties Joint Prehearing Stipulation w/cover ltr filed. |
| Jan. 06, 1993 | Petitioner, George Halloran`s Admissions or Denials to Respondent, South Florida Water Management District`s Request for Admissions filed. |
| Jan. 06, 1993 | Petitioner, George Halloran`s Response to Respondent, South Florida Water Management District`s Request to Produce Documents & Video Cassette Tape filed. |
| Jan. 06, 1993 | Petitioner, George Halloran`s Answer to Respondent, South Florida Water Management District`s First Set of Interrogatories; South Florida Water Management Districts First Set of Interrogatories to Petitioner,George Halloran rec`d . |
| Dec. 24, 1992 | Order sent out. |
| Dec. 14, 1992 | Petitioner`s Objection to South FL Water Management District`s Motion to Strike filed. |
| Dec. 10, 1992 | (SFWMD) Request for Admissions; Request to Produce Documents; Notice of Service of Interrogatories filed. |
| Dec. 10, 1992 | Letter to JSM from T Leidy (re: request for ruling on motions) filed. |
| Nov. 16, 1992 | Notice of Hearing sent out. (hearing set for January 19-20, 1993; 9:00am; Key West) |
| Nov. 16, 1992 | Order of Prehearing Instructions sent out. |
| Nov. 02, 1992 | (Respondent) Notice of Appearance of Co-Counsel; South Florida Water Management District`s Motion to Strike filed. |
| Oct. 30, 1992 | (Petitioner) Petition to Initiate Formal Proceedings; South Florida Water Management District`s Response to Initial Order filed. |
| Oct. 23, 1992 | Letter to SLS from J. William Green (re: Mr. John Fumero`s ltr of October 16, 1992 regarding the representation of the Navy) filed. |
| Oct. 21, 1992 | Initial Order issued. |
| Oct. 19, 1992 | Agency referral letter; Statement of Compliance with Rule 40E-1.521 Florida Administrative Code; Petition To Initiate Formal Proceedings; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 17, 1993 | Agency Final Order | |
| May 15, 1993 | Recommended Order | Rebuttable presmptn that water quality standards met if design of surface water managemet system meets rule criteria; injection wells must be separately permitted. |
