STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES D. ENGLISH, JR., CYPRESS CREEK PARTNERSHIP, and ALVA CEMETERY, INC., | ) ) ) | |
) | ||
Petitioners, | ) CASES NO. | 92-6900 |
) | 92-6901 | |
vs. | ) | |
) | ||
TELEGRAPH CYPRESS WATER MANAGEMENT | ) | |
DISTRICT and SOUTH FLORIDA | ) | |
WATER MANAGEMENT DISTRICT, | ) | |
) | ||
Respondents. | ) |
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on November 2, 1993, and January 25-27, 1994, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Melville G. Brinson, Esquire James D. English 1415 Hendry Street
and Cypress Creek Fort Myers, Florida 33902
For Petitioner: Frank A. Pavese, Sr. Esquire Alva Cemetery, 1833 Hendry Street
Inc Fort Myers, Florida 33902
For Respondent: John J. Fumero, Esquire South Florida 3301 Gun Club Road
Water Management West Palm Beach, Florida 33416 District
For Respondent: Scott Barker, Esquire Telegraph Cypress Post Office Box 159
Water Management Fort Myers, Florida 33902 District
STATEMENT OF THE ISSUE
Whether the application of Telegraph Cypress Water Management District to modify an existing surface water management system permit should be granted.
PRELIMINARY STATEMENT
On February 8, 1991, the Telegraph Cypress Water Management District submitted an application to the South Florida Water Management District seeking to modify an existing permit surface water management system permit for the purpose of reactivating farm fields located within the Telegraph North, Telegraph Swamp, and Curry Lake drainage basins.
After review, the South Florida Water Management District proposed to grant the permit modification.
On November 10, 1992, James D. English, Jr., and the Panacea Timber Company (Cypress Creek Partnership) filed a petition for administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004- S.
On November 12, 1992, Alva Cemetery, Inc., filed a petition for formal administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S.
The South Florida Water Management District referred the matter to the Division of Administrative Hearings for further proceedings. The cases were consolidated and scheduled for hearing. After being twice continued, the hearing commenced on November 2, 1993. Due to the sudden illness of one of the attorneys participating in the hearing, the hearing was again continued and was completed on January 25-27, 1994, in Fort Myers, Florida.
During the hearing the Petitioners jointly presented the testimony of twelve witnesses and had exhibits numbered 1-5, 7-25, 27, 29-33, 35-46, 49, 51-
55, 59-60, 62, 66-69, 71-74, 78, 82, 98-100, 105-111, 113, 120-122, 126-128,
130, and 132-138 admitted into evidence. The Respondents jointly presented the testimony of three witnesses and had exhibits numbered 1-15 admitted into evidence. A prehearing stipulation filed by the parties was admitted as a Hearing Officer's exhibit.
A transcript of the hearing was filed on March 1, 1994. All parties filed proposed recommended orders. On March 21, 1994, the South Florida Water Management District moved to strike the proposed order submitted by Petitioners James D. English and Cypress Creek Partnership for failure to comply with Rule 60Q-2.031(3), Florida Administrative Code, which limits proposed recommended orders to not more than forty pages. The motion was addressed in an order issued by the Hearing Officer on March 29, 1994. Except as provided in the order on the motion, the proposed findings of fact were considered in the preparation of this Order and are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
The South Florida Water Management District (District) is a public corporation in the State of Florida existing pursuant to Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is a multipurpose water management agency with principal offices in West Palm Beach, Florida.
Telegraph Cypress Water Management District (TCWMD) is a water control district organized pursuant to Chapter 298, Florida Statutes. Agricultural
operations have been conducted within the TCWMD for more than 30 years by the landowner, Babcock Florida Company. The TCWMD is the permittee of record.
James D. English, Jr., owns, along with other members of his family, an orange grove and pasture in Lee County, Florida. The English family has owned the property for approximately 120 years. On November 10, 1992, James D. English, Jr., and the Panacea Timber Company filed a petition for formal administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S.
Cypress Creek Partnership is a Florida General Partnership of which James D. English, Jr., is a principal. The partnership engages in agricultural activities in Lee County, Florida.
The Alva Cemetery, Inc., is a Florida not-for-profit corporation which owns and manages a cemetery facility in Lee County Florida. The cemetery has been in active use for approximately 120 years. In recent years, Alva Cemetery has experienced occasions of excess water encroaching onto the cemetery property.
On November 12, 1992, Alva Cemetery, Inc., filed a petition for administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S.
James D. English, Jr., Cypress Creek Partnership and Alva Cemetery, Inc., are herein referred to as Petitioners. The TCWMD and the Petitioner English share a common property boundary. The Alva Cemetery is surrounded by the English property. All lands involved in this matter historically drain towards the Caloosahatchee River.
The TCWMD includes approximately 89,120 acres of land located in Charlotte and Lee Counties, Florida. The land uses within the TCWMD include agricultural, cattle, and timber operations.
Generally, the fields have been leased to third party farmers who use the field for several years. When the fields are not actively farmed, they are returned to a fallow state and used as pasture land until fertility is restored at which time they are reactivated for farming.
Active farms fields are generally surrounded by a perimeter ditch and dike system. Pumps may be used to water and de-water the fields. When the field is returned to a fallow state, the ditch and dike system are not maintained and become less prominent either by action of weather or by intent. Pumps are not present.
All of the TCWMD lies generally north to northwest of the property owned by the Petitioners. Surface waters flow onto the Petitioners' lands from the north.
The Telegraph-Cypress system is unique and is the largest of its kind in South Florida Water Management District jurisdiction. The TCWMD system includes storage/detention facilities, control structures, pumping stations and an extensive network of internal canals. There are nine separate water management basins within the TCWMD.
The Petitioners asserted that the water management basins identified by the District and the TCWMD are incorrect. The greater weight of the evidence
establishes that the District's identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries.
The land encompassed by the instant application for permit modification includes three of the nine basins and encompasses approximately 51,400 acres of the TCWMD. Surface water discharge from the relevant farm fields flows via the internal canal network and sheet flow to the three common detention basins: Telegraph Swamp, North Telegraph Swamp ("Telegraph North") and Curry Lake.
The Telegraph North basin lies to the north of and discharges into the Telegraph Swamp basin and includes 13,799 acres of which 4,094 acres are farm fields.
The drainage into the Curry Lake basin does not impact either the Telegraph North or Telegraph Swamp basins or the Petitioners' properties.
The evidence establishes that as to the Telegraph North and Curry Lake drainage basins, the permit modification meets applicable permitting criteria. There is no credible evidence to the contrary.
Telegraph Swamp is the largest of the three relevant detention systems. The Telegraph Swamp basin includes a total of 32,707 acres of which 4,381 acres are farm fields.
Telegraph Swamp is a 4,390-acre wetland vegetated by cypress trees and sawgrass, with a base of muck soils, humus, topsoil, leaf litter and other organic material.
Located at the south end of Telegraph Swamp are surface water management control structures (the Big Island Dike) built in 1975 and permitted in the original 1980 permit. The structures include three broad-crested weirs and one flash-board weir.
Telegraph Swamp has been compared to a "sponge" capable of absorbing vast quantities of surface water discharges within the TCWMD before the control structures at the south end of the swamp are over-topped.
Water discharged from the control structures flows through canals and creeks to the Caloosahatchee River. During storm events water is discharged over the control structures and into a swamp area south of Big Island Dike. From there, the water flows southerly, into Telegraph Creek, Big Island Canal and Cypress Creek and then into the Caloosahatchee.
The Petitioners expressed concern that TCWMD could inappropriately discharge water from the control gates in the Telegraph Swamp weir. Based on evidence admitted at the hearing, the permit modification should include the following special condition:
Discharge structures in the Telegraph Swamp basin shall remain fixed so that discharge cannot be made below the control elevations, except that structure gates and weirs may
only be removed during emergency conditions upon notification to and consent by the District's Fort Myers Service Center regulatory area manager or designee.
The Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989, incorporated into Chapter 40E, Florida Administrative Code, provides the applicable water quantity permitting criteria relevant to this proceeding. The Petitioners assert that the control gates are required to be locked in accordance with Basis of Review section 3.2.4.1.b, which states:
Discharge structures shall be fixed so that discharge cannot be made below the control elevation, except that emergency devices may be installed with secure locking devices.
Either the District or an acceptable govern- mental agency will keep the keys for any such devices.
The Petitioners are correct. The rule requires secure locking devices. Such condition should be added to the permit The keys may remain with the TCWMD as "an acceptable governmental agency."
In 1980, the District issued Surface Water Management Permit No. 08- 00004-S for the TCWMD to operate an existing surface water management system for an existing agricultural operation. The 1980 permit specifically authorizes "[o]peration of a water management system serving 89,120 acres of agricultural lands by a vast network of internal drainage and irrigation canals, a major dike, a major canal and 4 water control structures discharging via small tributary creeks and sloughs into the Caloosahatchee River." Although the permit has been subsequently modified, the authorization to operate the system has not been amended.
While District enforcement staff have occasionally noted "performance deficiencies" on the TCWMD property, there have been no permit violations by the permittee. Deficiencies which have been called to the TCWMD's attention have been resolved.
Special condition number five to the 1980 permit provides that "[d]ischarges of water onto adjacent lands may be continued to the extent that increased problems are not caused by such discharges."
The Petitioners assert that the District has failed to acknowledge that water discharged from the Telegraph Cypress system flows into the Cypress Creek canal and has failed to consider the impact on the Cypress Creek receiving body. However in the staff report to the 1980 permit states as follows:
The Telegraph Cypress basin has three major drainage outlets. These are Trout Creek on the west, Telegraph Creek in the center and Cypress Creek to the east. There is a fourth outlet in the northeastern corner of the property known as Jack's Branch, however, this outlet is small compared to the three major ones.
Much of Telegraph's southeastern area was previously drained by Spanish Creek and County Line Canal. This historical drainage pattern was blocked when a company which is presently known as Golden Grove constructed a dike across their northern boundary.
This dike causes increased flow in a westerly direction around the west end of the dike, thence southerly towards Cypress Creek. This increased flow has caused excess water problems to property owners downstream. In addition, the dike has blocked virtually all flow to Spanish Creek.
The evidence fails to establish that, as asserted by the Petitioners, the District has failed to acknowledge the discharge of water to Cypress Creek or to consider the condition of the Cypress Creek receiving body. In the instant case, the condition of the Cypress Creek receiving body was not re- addressed because the permit modification being sought will cause no additional adverse impacts on existing conditions.
Although not individually numbered and identified in the original 1980 permit, the evidence establishes that in 1980, all of the farm fields which are subject to this permit modification application were in existence. The applicant seeks no new water control structures. Other than that required to reactivate fallow farm fields, there is no new construction proposed in the instant application.
The Petitioners assert that the instant permit modification application will result in construction of new farm fields. The evidence is contrary to the assertion.
Proposed permit special condition No. 10 states that the permit does not include the construction of any new farm fields. The farm fields covered in the staff report would be permitted for reactivation from a fallow state without further permitting activity in the future, and without individual retention for each farm field.
The modifications to the original 1980 permit have increased the total farm land area. There is no evidence that, except as specifically permitted and approved by the District, there has been alteration of historical discharge rates or routes.
There has been considerable confusion regarding the permitting status of the operations as farm fields have been reactivated. Such reactivation entails grading and leveling fields, reconstruction of ditches and dikes and installation of pumping equipment. In order to provide for standardization in farm field reactivation, and to better monitor such activities, the District requested that the TCWMD seek to modify the existing permit.
On February 8, 1991, the TCWMD submitted an application to modify the existing permit for the purpose of reactivating the existing farm fields located within the Telegraph North, Telegraph Swamp, and Curry Lake drainage basins.
The proposed SWM permit modification authorizes the continued use of the previously permitted surface water management system for existing active and
fallow farm fields and allows the reactivation of currently fallow farm fields without further permit modification by the District.
Proposed SWM permit special condition No. 16 states that the District requires notification in letter form 30 days prior to all farm field reactivation activities. The proposed modification of the permit will provide the District with an enhanced ability to inspect the reactivated farm fields.
Inherent in such reactivation is ditching and diking of the fields. Such operations have been authorized since the 1980 permit was issued. The work associated with field reactivation will be conducted in accordance with existing design criteria as set forth in the application. Based on evidence admitted at the hearing, the permit modification should include the following special condition:
Ditches and dikes associated with the farm fields encompassed by this authorization shall be constructed/maintained in conformance with the "Typical Field Layout And Detail Sheet," revised 10/12/93.
The evidence establishes that the operations of the TCWMD as proposed by the permit modification application are within the authorization of the existing permit as previously modified. Otherwise stated, the award of this modification will have no substantial impact on the operation of the permitted surface water management system. The modification will result in no additional discharge of surface water from the control structures.
The District has established water quantity criteria intended to insure that adverse impacts do not occur due to excess discharge. (Based upon the Hearing Officer's ruling on a District's Motion in Limine, water quality issues were not addressed at hearing.)
The criteria are set forth at Chapter 40E-4.301, Florida Administrative Code, and in the Basis of Review. In relevant part, the District criteria require an applicant to provide reasonable assurances that the surface water management system provides adequate flood drainage and protection, that the system will not cause adverse water quantity impacts on receiving waters and adjacent lands, and that the system will not cause adverse impacts on surface and groundwater levels and flows. Modification of a permit must not result in additional adverse off-site impacts.
In this case, reasonable assurances have been provided that the proposed modification will not exacerbate the historical and current drainage conditions. The permit modification application at issue does not propose to alter the rates or routes of water currently authorized for discharge from Telegraph Swamp. Reactivation of the farm fields will not impact receiving bodies in any manner different from that which presently exists under previous permits.
In providing reasonable assurances, the TCWMD analyzed the water storage capacity available in the detention basins, performed flood routing projections and calculated peak discharge rates for the permit area. As required by the district, the TCWMD utilized a standard hypothetical 25-year/3- day storm event in order to determine whether sufficient capacity was available to handle the resulting stormwater.
The projections provide reasonable assurances that the common detention areas have the capacity to provide adequate flood drainage and protection and are accepted.
Rule 40E-4.091(1)(a), Florida Administrative Code, incorporates by reference a document identified as the "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989" Section 3.2.1.2.b requires that:
the proposed project modification must meet the allowable discharge rate; and
the allowable discharge rate for a previously permitted project is that which was set in the previous permit.
The TCWMD prepared and submitted discharge calculations establishing that the post-development discharges will not exceed the discharge rate previously accepted by the District.
Since 1984, the District has previously accepted a peak allowable discharge rate of 39 cubic feet per second per square mile (csm). The csm figure is based upon the historical TCWMD discharge rate within the Caloosahatchee River basin. As previously stated, reactivation of the farm fields will not impact the receiving bodies in any manner different from that which presently exists under previous permits.
The District asserts that the 39csm discharge rate has been "permitted" since the 1984 modification was approved. The Petitioner asserts that the 39csm discharge rate has never been "permitted" by the District.
The evidence establishes that since the 1984 application for permit modification, the discharge rate of 39csm has been utilized by TCWMD and has been accepted by the District, but that the actual permits do not specifically identify the discharge rate as 39csm.
In projecting discharge rates, the TCWMD used a time of concentration of one hour. The time of concentration (T.O.C.) is the time in which water would move from the farm fields to the control structure in each sub-watershed. Otherwise stated, a projected T.O.C. of one hour means that the storm water would move from the field to the control structure in one hour.
The T.O.C. of one hour is a conservative estimate and likely substantially overestimates the speed at which the water will move.
The three basin areas contain a total of more than 80 square miles. Water will travel an average distance of two miles from field to detention basin through ditches, swales and existing low areas. Again conservatively, the TCWMD did not include projected travel time through such conveyances, resulting in a longer T.O.C. and resulting in a higher peak discharge rate than is probable.
Although there appeared to be some confusion on the part of the District staff as to the application of the T.O.C. by the TCWMD, the TCWMD engineer who performed the calculation testified at hearing and was qualified as an expert witness in civil engineering, hydrology and surface water management. His testimony and projections are reasonable and are credited.
Proposed SWM permit modification special condition No. 11 states that farm field discharge shall be directed to and conveyed via existing ditches, wetlands and/or sheetflow areas per existing site conditions. No new outfall ditches are permitted under this modification.
Flood routings were calculated assuming all farm fields would be activated simultaneously and pumping the maximum capacity of 390 gallons per minute per acre (the equivalent of 20-21 inches of surface water pumped from each field daily). It is highly unlikely that all farm fields would be active simultaneously or that stormwater would continue to fall with such velocity to permit continued pumping at maximum capacity for an extended period.
Even based on the conservative assumptions utilized by the TCWMD engineers, the projected peak discharge rate at the Telegraph Swamp control structure is 37csm to 38.5csm, within the maximum of 39csm previously accepted by the District. The computer modeling performed by the TCWMD engineer in calculating the peak discharge rate is accepted as reasonable.
The TCWMD did not include offsite inflow in its analysis of projected capacity or discharge rates. There is anecdotal evidence that on occasion, water may flow into TCWMD from Jack's Branch or from across roadways to the north and west of the TCWMD; however, given the vast storage capacity of the TCWMD detention areas, there is no evidence that the quantity of offsite inflows is of such significance as to render the TCWMD projections unreasonable.
As previously stated, the TCWMD calculations are reasonable and are accepted. The evidence establishes that the peak discharge rate resulting from approval of the instant permit modification will not exceed 39csm.
The Petitioners offered their own peak discharge rate calculations, based on a "worst possible case scenario." The assumptions on which the Petitioners' projections are based are unreasonable and are rejected.
Based on recommendations received at the hearing, the permit modification should include the following special condition:
Pumped discharge from farm fields for which pumps are not currently installed shall be limited to 75 gallons per minute per acre of farmed area. Pumps are currently installed in fields number 7, 8, 9, 10, 12,
14, 15, 24 north and south, 28, east half
of 34, 64, 67, 68, 69 and 80.
The Petitioners assert that the system is currently causing adverse impacts to their properties in the form of flooding. The greater weight of the evidence establishes that the system presently does not cause adverse water quantity impacts on receiving waters and adjacent lands, and does not cause adverse impacts on surface and groundwater levels and flows. The evidence establishes that award of the application for permit modification will not adversely alter the current operations.
It is clear that the Petitioners have been impacted by changes in the historical drainage patterns in the area; however, such changes had substantially occurred by 1980 when the original permit was issued. The greater weight of the credited evidence establishes that such impacts are not the result of the activities authorized in the original 1980 permit and in subsequent
modifications, but instead are the result of unrelated actions by third parties not involved in this administrative proceeding. There is no credible evidence that the permit modification sought in the instant proceeding will adversely affect the Petitioners.
The 1980 permit addresses existing water quantity problems in the area of the TCWMD project. For example, the construction of the Golden Grove Dike resulted in blockage of historical drainage towards Spanish Creek and the diversion of excess waters into Cypress Creek. During the 1980's the District required that culverts be installed in the Golden Grove Dike which eventually restored some surface water flow through the dike construction and on towards the south, although during some storm events water flow continues around the dike and into Cypress Creek.
The Petitioners offered anecdotal evidence as to reduced water flows in some local creeks and increased flows thorough Cypress Creek. The Respondent offered evidence indicating that water flow through Cypress Creek may be less than 30 years ago, due to the digging of a canal between Spanish Creek and Cow Slough and the extension of the Clay Gully Canal's diversion of water into Telegraph Swamp. None of the evidence on this point was persuasive, however it is not relevant. Clearly, the instant permit modification application will not adversely affect the existing situation in the receiving bodies.
The Petitioners assert that other receiving waterways have become clogged with vegetation, debris or soil, have accordingly reduced capacities, and are unable to accommodate historical discharge levels. Based on the lack of capacity, the Petitioners suggest that waters move towards the eastern portion of Telegraph Swamp and are discharged, flow towards, into and over the banks of Cypress Creek, and flood their properties.
The TCWMD conducted a study of backwater profiles based upon credited field data. The study is found to be reasonable and is credited. Based upon the study, approximately 90 per cent of the water discharged from Telegraph Swamp is conveyed to the Caloosahatchee via Big Island Canal, Telegraph Creek and the swamp area south of the control structure. The remaining 10 per cent of the water enters the Bullhead Strand-Lightered Canal-Cypress Creek watercourse.
Water flows from Telegraph Swamp into Cypress Creek via Bullhead Strand and the South Lightered Canal, however, the canal has become so restricted by vegetation that it provides little direct water flow between the strand and the creek and is more properly regarded as an area of enhanced sheet flow. The evidence does not establish that the surface water traveling from Bullhead Strand to Cypress Creek is of significance. Coupled with the existence of the Big Island Canal (which connects Telegraph Swamp to Telegraph Creek) it is unlikely that post-development surface water discharged from the Telegraph Swamp into Cypress Creek exceeds pre-development discharges.
The Petitioners claim that two culverts in the Big Island canal restrict the flow of water through the canal and result in increased discharge to the east and to Cypress Creek. The greater weight of the evidence establishes that during period of time when the culverts are unable to accommodate water flow, the water travels into a broad flood plain, around the culverts and returns to the Big Island Canal.
The evidence establishes that the proposed modification will not result in additional adverse off-site impacts. The adverse conditions affecting Cypress Creek existed at the time of the 1980 permit and are addressed in the
staff report to that permit and to subsequent permit modifications. There is no credible evidence that modification of the permit as sought in this case will result in adverse impacts beyond those which have existed at the time of the award of the original permit.
The Petitioners assert that the fields included within the permit modification application lack individual retention areas. The lack of individual detention areas is immaterial in this case where sufficient downstream detention capacity is available through the common detention areas.
The Petitioners asserts that the Telegraph Swamp is an "above-ground impoundment" and that as such is fails to comply with requirements related to such water storage systems. The Telegraph Swamp is not a typical "above-ground impoundment" as that term is routinely applied by the District. The regulations addressed by the Petitioners clearly state that they are not intended to be inclusive and are intended to provide guidelines and basic performance criteria for commonly encountered south Florida situations. Telegraph Swamp is not a commonly encountered south Florida situation. There is no evidence that the decision not to apply the "above-ground impoundment" regulations to the Telegraph Swamp is unreasonable.
The Petitioner suggest that the TCWMD application for permit modification is deficient and fails to provide information in compliance with the Basis of Review. The Basis of Review is directed towards applications for new construction. The District reasonably does not interpret the all elements of the Basis of Review to apply to existing operations.
The original staff report for this permit modification application fails to acknowledge that Cypress Creek is a receiving body. However, as stated previously, the 1980 application and subsequent modifications have clearly addressed the fact that Telegraph Swamp waters discharge to Cypress Creek via intervening waterways. The failure to include the reference in the staff report to this application for modification is irrelevant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The South Florida Water Management District is authorized to issue permits and impose such reasonable conditions as are necessary to assure that the project will not be harmful to the water resources of the District. Section 373.413(1), Florida Statutes.
Rule 40E-4.331, Florida Administrative Code, provides that an "application for modification of a surface water management permit shall be processed in accordance with this rule, unless otherwise revoked, suspended or expired."
According to Rule 40E-4.331(2), Florida Administrative Code, an application to modify an operations permit such as the permit in this case may be made by formal application to the District or, under certain conditions, may be made by letter. The Rule provides as follows:
40E-4.331 Modification of Permits
(2) Applications to modify construction or
operations permits may be made:
by formal application and reviewed using the same criteria as new applications, pursuant to Rules 40E-4.101 (Content of Application), and 40E-4.301 (Conditions for Issuance of Permits), or
by letter, provided the requested modification does not:
substantially alter the permit authorization,
increase the authorized off-site discharge,
impact the environmental features of the project,
decrease the required retention/detention,
decrease the required flood control eleva- tions for roads or buildings, and
decrease pollution removal efficiency.
The evidence in this case establishes that the requested modification will not substantially alter the permit authorization, increase the authorized off-site discharge, impact the environmental features of the project, decrease the required retention/detention, decrease the required flood control elevations for roads or buildings, or decrease pollution removal efficiency. Accordingly, the application for permit modification could have been made by letter under the provisions of Rule 40E-4.331(2)(b), Florida Administrative Code. Nonetheless, the TCWMD filed a formal application for modification with the District.
As to the contents of a formal application, rule 40E-4.101, Florida Administrative Code, provides as follows:
40E-4.101 Content of Application
Applications for permits required by this chapter shall be filed with the District. The application shall contain:
Form 0645 Surface Water Management Permit Applications and/or Water Use Permit Applications, as incorporated by reference in subsection 40E-1.901(1), F.A.C.;
The information required in Subsection 373.413(2), Florida Statutes;
Drawings, calculations, and engineering details sufficient to define the nature, scope, intent and functioning of the work pro- posed; and
The information required in Appendix 1 of the document described in Paragraph
40E-4.091(1)(a).
Rule 40E-4.091(1)(a), Florida Administrative Code, incorporates by reference a document identified as the "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989" (Basis of Review) which provides the applicable water quantity permitting criteria relevant to this proceeding.
According to Basis of Review paragraph 1.1, the objective of the review is to insure that the permit will authorize activities or situations which are not harmful to the water resources of the District or inconsistent with the public interest. Paragraph 1.3 states as follows:
Criteria Flexibility--The criteria contained herein are flexible with the primary goal being to meet the District water resource objectives . . . .
Appendix 1 to the Basis of Review includes a checklist of information to be included in surface water management permit applications.
The Petitioners correctly note that the application at issue in this proceeding fails to include all the items set forth in the Appendix 1 checklist and assert that the application is therefore deficient and should be denied. As set forth above, an applicant for a permit modification is not required to supply every item on the checklist.
In "Guidance for Preparing an Application for a Surface Water Management Permit" (a District document which tracks the checklist elements set forth in Appendix 1 and provides assistance to persons completing an application) the introduction states "[a]n application for a modification to an existing permit often need not contain all the items described on the pages which follow, depending on what has been previously provided and the nature of the proposed modification."
In this case, the permit being modified has been in existence since 1980 and has been the subject of previous modifications. Based on the evidence of record, it appears that the request for modification could have been made by letter from the permittee to the District. Adequate information is available to the District to permit sufficient review of the modification application at issue in this proceeding. Failure to supply all the elements set forth in Appendix 1 of the Basis of Review is not fatal.
Rule 40E-4.301, Florida Administrative Code, provides as follows: 40E-4.301 Conditions for Issuance of Permits
In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system:
provides adequate flood drainage and protection,
will not cause adverse water quality and quantity impacts on receiving waters and adjacent lands regulated pursuant to Chapter 373, Florida Statutes,
will not cause discharges which result in any violations, in surface waters of the state, of the standards and criteria of Chapter 17-3,
will not cause adverse impacts on sur- face and groundwater levels and flows,
will not cause adverse environmental impacts,
can be effectively operated and maintained,
will not adversely affect public health and safety,
is consistent with State Water Policy,
Chapter 17-40, F.A.C.,
for a DRI with a signed Preliminary Development Agreement with the Florida Department of Community Affairs, pursuant to section 380.06(8), Florida Statutes, provides a surface water management system for that portion of the site approved for development which is able to operate
separately from the surface water management system for the balance of the project site and still meet applicable District criteria,
meets any applicable basin criteria in chapter 40E-41,
will not otherwise be harmful to the water resources of the District, and will not interfere with the legal rights of others as defined in rule 17-40.07,
is not against public policy,
will meet the general and specific criteria in the document described in rule 40E-4.091(1)(a),
will meet the criteria for isolated wetlands, which are found in Appendix 7 of the documents described in rule
40E-4.091(1)(a), and
will meet the criteria for above ground impoundments, which are found in Appendix 6 of the document described in rule
40E-4.091(1)(a).
The surface water management system design plans must be sealed and signed by a Florida Registered Professional Engineer, if required by Chapter 471, Florida Statutes.
In evaluating construction and/or opera- tion permits requested pursuant to rules 40E- 4.331(1)(b) or (c) (Modification of Permits), each particular subject of the application will be evaluated based upon the degree of detail submitted with prior approved application(s). Subsequent phases will be reviewed based on the detail submitted at
the time of conceptual approval or previously approved construction and operation permits. For detail not provided, the criteria in effect at the time of the application will apply. This rule shall apply to all Surface Water Management applications which are reviewed for groundwater discharges of storm- water pursuant to section 403.812(1)(c), Florida Statutes, regardless of when the conceptual approval was issued and shall apply to all other applications received and/or found to be complete after the effective date of this rule.
In this case the evidence establishes that the request for modification of the Telegraph Cypress Water Management District's surface water management permit complies with the relevant criteria set forth at Rule 40E- 4.301, Florida Administrative Code. The applicant has provided reasonable assurances that the project meets the criteria related to water quantity and flood protection as required by the District's rules.
Although the Petitioners suggest that 1992 flooding is evidence that the SWM system permitted to TCWMD is adversely affecting their property, the meteorological activity which resulted in the flooding was outside the 25- year/3-day storm event for which such systems are designed. In other words, even if the Petitioners' water problems during the relevant period of 1992 could be traced to the TCWMD, it would not establish that the system was not in compliance with the applicable criteria or the conditions under which it was permitted.
The Petitioners offered extensive evidence related to the previous permitting of activities in the TCWMD. The point of entry to challenge previous permitting has long since passed. Previous permitting matters are beyond the scope of this proceeding and are not relevant.
Alva Cemetery suggests that because the TCWMD is a public corporation formed under the provisions of Section 298, Florida Statutes, TCWMD is prohibited from expending funds on behalf of the property owner, Babcock Florida Corporation. Such matters are likewise beyond the scope of this proceeding and are not relevant.
Petitioner English suggests that the TCWMD is in violation of the reasonable use doctrine because the TCWMD has allegedly made such improvements as to have resulted in damage to the downstream land owner (English). Such matters are outside the jurisdiction of this proceeding. However, the evidence fails to establish that the actions of the TCWMD have resulted in damage to the English property. Further, the evidence fails to establish that the permit modification sought in this proceeding will result in any additional adverse impact to the Petitioners.
Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order issuing Surface Water Management Permit Modification No. 08-00004-S including the additional permit conditions set forth herein, to the Telegraph Cypress Water Management District.
DONE and RECOMMENDED this 1st day of April, 1994 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1994.
APPENDIX TO RECOMMENDED ORDER, CASES NO. 92-6900 and 92-6901
To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.
Petitioners James D. English and Cypress Creek Partnership
The proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership consist of unnumbered paragraphs. Pages forty-five through fifty-nine of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership were stricken as set forth in the Order On Motion To Strike issued March 29, 1994. The paragraphs of pages five through forty-four of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership have been consecutively numbered and are accepted as modified and incorporated in the Recommended Order except as follows:
1-2. Rejected, argument, not findings of fact.
7-9. Rejected, argument, not findings of fact. The staff report is not dispositive.
10-12. Rejected. The greater weight of the evidence establishes that, although the 39csm figure is not set forth in the permit, as of the 1984 modification, the TCWMD calculations have been based on a peak discharge rate of 39csm and that the District has accepted the calculations previously. The applicable criteria in the instant case require that the allowable discharge rate for a previously permitted project is that which was set in the previous permit.
13. Rejected, recitation of testimony is not finding of fact.
15-16. Rejected, argument, not finding of fact, irrelevant, cumulative. 17-18. Rejected, recitation of testimony is not finding of fact.
19. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that 39csm has been the peak discharge rate accepted by the District since 1984. The flow rate projected by the TCWMD does not exceed the accepted peak discharge rate.
24. Rejected, recitation of testimony is not finding of fact.
26-28. Rejected, recitation of testimony is not finding of fact. 29-30. Rejected, argument, not finding of fact.
Rejected, irrelevant.
Rejected, argument, not finding of fact.
Rejected, irrelevant. The greater weight of the credible and persuasive evidence establishes that 39csm has been the District's accepted peak discharge rate and that this modification will not result in peak discharge rates in excess of that which has been previously accepted.
Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable.
Rejected, unnecessary.
36-45. Rejected, irrelevant. The anecdotal evidence fails to establish that offsite inflows are of such quantity as to render the TCWMD projections unreasonable. The proposed findings also consist of recitation of testimony or argument and are not findings of fact.
46-52. Rejected, contrary to the greater weight of credible and persuasive evidence. The evidence fails to establishes that the swamp is an "above-ground impoundment" as that term is routinely applied by the District. The proposed findings also consist of recitation of testimony or argument and are not findings of fact.
53-67. Rejected, irrelevant. An applicant for a permit modification is not required to supply every item on the checklist. An application for a modification to an existing permit often need not contain all the items described.
69. Rejected, cumulative.
70-71. Rejected, argument, not finding of fact.
72-81. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The proposed findings also consist of recitation of testimony or argument and are not findings of fact.
82. Rejected, subordinate.
83-85. Rejected, irrelevant. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. This proceeding is not a review of preliminary staff activity. The applicant must establish entitlement to the permit at the hearing.
86-87. Rejected, recitation of testimony is not finding of fact.
Rejected. The confusion on the part of District staff as to what
T.O.C. was utilized by the TCWMD engineer is irrelevant.
Rejected, unnecessary.
Rejected, recitation of testimony is not finding of fact.
91-94. Rejected, irrelevant, the discharge projections calculated by the TCWMD as explicated at the hearing are credited. In any event, the evidence establishes that this modification will result in no additional discharge of surface water from the control structures.
95-97. Rejected, irrelevant. The evidence establishes that this modification will result in no additional discharge of surface water from the control structures.
Petitioner Alva Cemetery
Petitioner Alva Cemetery's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
2. Rejected, not supported by the greater weight of credible and persuasive evidence.
4-5. Rejected, irrelevant.
Rejected, irrelevant. This is a de novo hearing, not a review of preliminary staff work. The evidence at hearing establishes that the permit modification will not cause additional adverse affect on existing receiving bodies.
Rejected, irrelevant. The evidence fails to establish that Hall Creek and Fichter Creek are receiving bodies of such capacity that their omission from staff report is material.
Rejected, irrelevant.
Rejected, irrelevant. The evidence fails to establish that offsite inflows are of such quantity as to be relevant.
11. Rejected, not supported by the greater weight of credible and persuasive evidence. The Applicant's analysis is credited. As to T.O.C., even the less conservative T.O.C. projections indicate a peak discharge rate within that previously accepted by the District.
12-13. Rejected, irrelevant.
Rejected, irrelevant. Such return overflows are unnecessary in this situation where the detention areas have the capacity to provide adequate flood drainage and protection.
Rejected, not supported by the greater weight of credible and persuasive evidence.
Rejected, not supported by the greater weight of credible and persuasive evidence.
18-20. Rejected, cumulative.
21. Rejected, immaterial. There is no evidence that this permit modification application will cause additional adverse impact on receiving bodies. The failure to address nonexistent impacts is immaterial.
Rejected, errors in staff report are irrelevant. The evidence admitted at hearing is accepted as correct.
First paragraph is rejected, cumulative. Second paragraph is rejected, not supported by the greater weight of credible and persuasive evidence.
Rejected, anecdotal testimony is not supported by the greater weight of credible and persuasive evidence.
Rejected. The greater weight of credible and persuasive evidence establishes that all farm fields affected by this permit modification application were in existence by the 1980 permit.
Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable.
Rejected, irrelevant. The greater weight of credible and persuasive evidence fails to establish that the cemetery flooding is related to actions by the TCWMD. Further, the evidence fails to establish that, even if the flooding was related to the TCWMD, the instant permit modification application will cause additional adverse impacts.
Respondent Telegraph Cypress Water Management District
Respondent Telegraph Cypress Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
18. Rejected, subordinate.
19-20. Rejected, not credited and unnecessary.
Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein.
Rejected, cumulative.
Rejected, unnecessary.
Respondent South Florida Water Management District
Respondent South Florida Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
30. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein.
Pages 17-19 of the Proposed Recommended Order set forth revisions to the staff report which originally form the basis for the preliminary agency action in this matter. As the hearing is a de novo review of this matter, it is unnecessary for this Recommended Order to address the revision of the staff report, which has limited probative value.
COPIES FURNISHED:
Tilford C. Creel Executive Director
South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416
Melville G. Brinson, Esquire 1415 Hendry Street
Fort Myers, Florida 33902
Frank A. Pavese, Sr. Esquire 1833 Hendry Street
Fort Myers, Florida 33902
Scott Barker, Esquire Post Office Box 159
Fort Myers, Florida 33902
John J. Fumero, Esquire Toni M. Leidy, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416
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 ten 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE GOVERNING BOARD
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
JAMES D. ENGLISH, JR. and CYPRESS CREEK PARTNERSHIP, and ALVA CEMETERY, INC,
Petitioners,
vs. DOAH CASE NOS. 92-6900
92-6901
TELEGRAPH CYPRESS WATER SFWMD 94-48 FOF-SWM MANAGEMENT DISTRICT and SOUTH
FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/
FINAL ORDER
On April 4, 1994, Hearing Officer Quattlebaum from the Division of Administrative Hearings submitted to the South Florida Water Management District ("District"), and all other parties to the above-style case, a Recommended Order, a copy of which is attached hereto as Exhibit A. The Petitioners, James
D. English, Jr., and Cypress Creek Partnership filed fifty-nine (59) Exceptions to the Recommended Order. The Petitioner, Alva Cemetery, Inc., filed two (2) Exceptions to the Recommended Order and adopted by reference those exceptions filed by Petitioners English and Cypress Creek. District staff filed a response to those exceptions. All of the pleadings were timely filed and are part of the instant record. This matter thereafter came before the District's Governing Board on May 12, 1994, for final agency action.
BACKGROUND
This matter arises out of a third party challenge brought by Petitioners, James D. English, Jr., Cypress Creek Partnership and Alva Cemetery, Inc. ("Petitioners") to the District's proposed agency action recommending issuance of a Surface Water Management Permit Modification to Telegraph Cypress Water Management District. The Petitioners' challenge resulted in the matter being forwarded to the Division of Administrative Hearings. On November 2, 1993 and January 25-27, 1994, in Fort Myers, Hearing Officer William Quattlebaum conducted four full days of evidentiary hearing in this matter. Through a recommended order, he recommended that the subject permit be issued with additional conditions.
ABBREVIATIONS
Petitioners James D. English, Jr., Cypress Creek
Partnership and Alva Cemetery, Inc.
District South Florida Water Management District TCWMD/Applicant Telegraph Cypress Water Management District [Vol. , p. ] Citation to Hearing Transcript Volumes and
Pages
[D/A/P. Ex. ] Exhibit entered into evidence at final
hearing
Basis of Review Basis of Review for Surface Water Management Permit Applications within SFWMD - April 1989
FOF Hearing Officer Quattlebaum's Finding of Fact
COL Hearing Officer Quattlebaum's Conclusion of Law
RULINGS ON PETITIONERS' EXCEPTIONS TO FINDINGS OF FACT AND CONCLUSIONS OF LAW
GOVERNING BOARD'S STANDARD OF REVIEW FOR FINDINGS OF FACT
Before examining the exceptions filed in this proceeding, it is critical to understand a Governing Board's standard of review. As a matter of law, Section 120.57(1)(b)10., Fla. Stat., prohibits a 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. 1/ "Competent, substantial evidence" has been defined as "such evidence as is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." 2/ 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. 3/ 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. 4/ Therefore, any exceptions which assert that a finding is "contrary" to evidence presented shall not be granted unless there is no substantial competent evidence within the record to support the hearing officer's finding.
In addition, a Governing Board may not create findings of fact or add to findings of fact, since it is not acting in the capacity of the trier of fact. 5/ Its role is to insure that the findings made by the hearing officer are based upon evidence contained in the record. Supplemental findings may only be made by a hearing officer on remand from a Governing Board.
In this case, the hearing officer found that the Applicant's proposed modification to the surface water management system meets District surface water management permit criteria and that the Petitioners did not provide sufficient evidence to support their contention that the proposed modification will result in additional adverse water quantity impacts to downstream property owners. The findings made by the hearing officer, based upon the record in this case, will not be disturbed unless we find, from a review of the entire record, that there is no competent, substantial evidence which supports these findings.
AS TO PETITIONER ALVA'S EXCEPTION TO COL 91
Petitioner Alva takes exception to the COL 91 on two grounds; (1) that the hearing officer erred in not making a finding of fact that TCWMD, as a district formed under Chapter 298, Fla. Stat., has no power to file an application on behalf of a private entity (Babcock Florida Corporation); and (2) that the hearing officer erred by not making a conclusion of law on the same basis.
The hearing officer ruled that this issue is beyond the scope of the proceeding and is irrelevant to whether the permit should issue. Although we may overturn a hearing officer's conclusion of law, a hearing officer has the sole discretion to determine the relevancy and materiality of evidence.
Regardless, in the case of this permit, TCWMD is the permittee, operational entity, and is responsible for modifying the permitted works. [D/A Ex. 5 - 1984 Permit Modification - Special Condition No. 25] This exception is therefore rejected.
EXCEPTION TO FOF 12
The Petitioners' objection to FOF 12 is twofold. First, they object to the finding that the Telegraph-Cypress system is a unique system. There is competent, substantial evidence in the record based upon the expert testimony of Richard Rogers, the District's Surface Water Management Director, that the Telegraph- Cypress system is a unique system within the District's jurisdiction. [Vol. III, pp. 387, 480] Therefore, there is no basis for overturning this finding and we hereby reject this exception.
The Petitioners' second objection to FOF 12 is to the hearing officer's statement that the TCWMD consists of nine separate water management basins. Petitioners are correct. Upon a complete review of the record, it is apparent that the record does not support the finding that there are nine separate water management basins. The District's proposed permit staff report states that there are seven separate water management basins within TCWMD. Therefore, Petitioners' exception regarding the number of water management basins is accepted and this finding is amended to indicate seven water management basins within TCWMD.
EXCEPTION TO FOF 13
Petitioners' exception to FOF 13 goes to the weight of the evidence. The Petitioners argue that the basin delineation work presented by Petitioners at the hearing is more persuasive than the basin delineations relied upon by the District is formulating its proposed agency action. The hearing officer found that the basin boundary delineations relied upon by the District are reasonable based upon the greater weight of the evidence.
We are not authorized to reweigh conflicting evidence, judge the credibility of witnesses or otherwise interpret the evidence found at a hearing. Rather, we are limited to determining whether there is competent, substantial evidence in the record upon which to base the finding. 6/
The Applicant's engineer, Andy Tilton, testified regarding the methodology and formation of the basin delineations. [Vol. 1, pp. 100-103, 147-148; Vol.
II, pp. 272, 281-285, 311-312]. The hearing officer found this testimony outweighed the testimony presented by the Petitioners. Therefore, there is no basis upon which to overturn this finding of fact regarding basin delineations and this exception is herewith rejected.
Although the Petitioners did not take further exception to FOF 13, the hearing officer again erred in referencing nine basins. As stated above in FOF 12, the record supports a finding of seven water management basins within the TCWMD, thus, the last sentence in this finding is rejected and amended to state "[T]he greater weight of the evidence establishes that the District's identification and delineation of the seven basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries."
EXCEPTION TO FOF 17
In FOF 17, the hearing officer found that the permit modification meets applicable permitting criteria in terms of the Telegraph North and Curry Lake drainage basins. The Petitioners take exception to this finding on the basis that there is little evidence regarding whether the two basins meet permitting criteria.
There is competent, substantial evidence in the record through the testimony of the District's expert witness that the proposed permit modification, which includes areas within the Telegraph North and Curry Lake drainage basins, meets the District's permitting criteria. [Vol. I, pp. 88- 89,103; Vol. II, p. 378]. Thus, this exception is rejected.
EXCEPTION TO FOF 20
Petitioners take exception to this finding of fact on the basis that the hearing officer should have used a more detailed description to depict the water control structures located in the Big Island Dike. Failure to provide more intricate detail regarding a finding of fact is no basis for overturning the finding. There is competent, substantial evidence in the record to support the hearing officer's finding of fact. [Vol. III, pp. 432-433, 487; Vol. IV, pp.
631-632, 669-670; Vol. V, pp. 771, 829-832]. This exception is hereby rejected. EXCEPTION TO FOF 21
The Petitioners take exception to FOF 21 which states that Telegraph Swamp has been compared to a "sponge capable of absorbing vast quantities of water before the control structures at the south end of the swamp are over-topped." This finding is based upon the expert testimony of District expert witness Richard Rogers. [Vol. II, pp. 394, 464]. Having a basis in the record, this finding is not overturned and the exception thereto is rejected.
EXCEPTION TO FOF 22
In FOF 22, the hearing officer found that surface water "discharged from the Telegraph Swamp, Big Island Canal and Cypress Creek, and then into the Caloosahatchee." This finding of fact is based upon competent, substantial evidence in the record. [Vol. I, pp. 96-97,100-102; Vol. III, pp. 413, 468; Vol. V, pp.734-736]. The hearing officer concluded, based upon the weight of the evidence, that this description regarding the flow of water accurately depicted discharges from Telegraph Swamp. There is, therefore, no basis for overturning this finding of fact which is based on evidence in the record; thus, we reject this exception.
EXCEPTION TO FOF 23
In FOF 23, the hearing officer set forth a proposed special condition regarding operation of structure gates within the Big Island Dike Canal discharge structures. Petitioners take exception to this finding on the basis that the finding is "inadequate." This is not a sufficient basis for overturning or modifying a finding. Petitioners propose an additional requirement be added to the special condition. The special condition proposed by the hearing officer is based upon testimony and documentary evidence proposed at the hearing and is a reasonable application of the District's criteria.
There is no basis for overturning this finding of fact which is based upon competent, substantial evidence within the record. [Vol. III, pp. 427-428; Section 3.2.4.1.b, Basis of Review]. Therefore, this exception is rejected.
EXCEPTION TO FOF 25
In this finding, the hearing officer proposed a special condition requiring that keys for locking the gates on the discharge structures in the Big Island Dike shall be held by the TCWMD, which is an acceptable governmental entity pursuant to the District's permitting criteria. [Vol. III, pp. 423, 467]. The hearing officer bases this finding on the District's permitting criteria contained in Section 3.2.4.1.b, Basis of Review. This exception is therefore rejected.
EXCEPTION TO FOF 27
From a review of the entire record, there is no evidence to support the hearing officer's finding that there have been no permit violations by TCWMD. In Petitioners' exception to FOF 27, they correctly note that a 1981 permit modification stated that a Notice of Violation was issued to the TCWMD on September 17, 1986. The permit goes on to state that the noted deficiencies were subsequently corrected. Therefore, the first sentence of the hearing officer's FOF 27 is rejected, and amended as follows: "District enforcement staff have occasionally noted `performance deficiencies' on the TCWMD property, and on September 17, 1986, issued a Notice of Violation." The remainder of the finding is supported by evidence in the record. Although the instant exception is herein accepted and the finding of fact modified as set forth above, we determine that such modification is irrelevant to whether the permit should issue.
EXCEPTION TO FOF 29
In FOF 29, the hearing officer found that the District considered the impact of the permitted project on the Cypress Creek receiving body in issuing the 198p operations permit [Vol. III, p. 438, D/A Ex. 5]. The hearing officer quoted from the 1980 permit staff report regarding the three major drainage outlets from the Telegraph Cypress drainage basin and the historical drainage blockages which occurred during the construction of the Golden Grove Dike. The Petitioners contend that the hearing officer erred by making this finding. The evidence in the record supports the hearing officer's finding. [D/A Ex. 5 - 1980 Operations Permit; Vol. III, pp. 404-405].
The hearing officer did not state in this particular finding that the District reconsidered the impact of discharges on Cypress Creek when reviewing the permit modification. There is competent, substantial evidence in the record that the impact on receiving waterbodies was not analyzed because there was no
proposed change to discharge rates or routes. [Vol. I, pp. 64, 167-168; Vol. III, pp. 377, 407]. Therefore, this exception is rejected.
EXCEPTION TO FOF 30
Petitioner takes exception to the hearing officer's finding that the condition of the Cypress Creek receiving body was not readdressed because the modification being sought will not cause additional adverse impacts on existing conditions. Testimony by the District and Applicant's experts substantiate this finding. [Vol. I, pp. 166-168; Vol. III, pp. 407, 461-462]. There is adequate evidence in the record that the permit modification will not result in discharges in excess of that previously permitted. [Vol. I, pp. 49, 51-52, 90- 93; Vol. III, pp. 378, 397].
The Petitioners argue that the "greater weight of the evidence" clearly establishes that Cypress Creek does not have the capacity to receive any additional waters and that the modification will result in increased flows to Cypress Creek. This finding of fact made by the hearing officer goes to the weight and credibility of the evidence and is supported by the record. [Vol. III, pp. 395-397]. We are not free to reweigh conflicting evidence, judge the credibility of witnesses or otherwise interpret the evidence, but rather are limited to determining whether competent, substantial evidence exists in the record to support the hearing officer's finding. 7/ Based upon the hearing officer's determination regarding the substantial, competent evidence presented, this finding shall stand and the exception is rejected.
EXCEPTION TO FOF 31
Petitioners take exception to this finding on the basis that there is no record evidence. To the contrary, District and Applicant expert witnesses testified that the farm fields covered by the proposed modification existed in 1980. [Vol. III, pp. 378, 381-382, 397, 402-403]. The modification allows those fields to be activated and deactivated pursuant to the permit conditions. [Vol. III, p. 377]. No new construction is authorized in the proposed permit modification other than that associated with reactivation of farm fields. [Vol. III, pp. 377- 378, 455-456]. Petitioners assert that the "greater weight of the evidence" indicates that the farm fields subject to the permit modification were not specifically permitted in the 1980 permit. Absent a clear lack of competent, substantial evidence in the record, we have no basis for rejecting this finding. This exception is therefore rejected.
EXCEPTION TO FOF 32
Petitioners asserted at the hearing that the proposed permit modification will result in construction of new farm fields. The hearing officer found that the evidence is contrary to this assertion. There is ample documentary evidence and testimony that no new construction of works will be authorized by the permit modification. [Vol. I, pp. 97-100; Vol. II, pp. 324-325, Vol. III, pp. 377- 378]. Also, the permit conditions proposed by the District and recommended by the hearing officer require that permitted reconstruction of the ditches and dikes conform to the "Typical Field Layout and Detail Sheet" attached to the permit as an exhibit. [Vol. II, pp. 217, 324; Vol. III, p. 375]. Thus, this exception is hereby rejected.
EXCEPTION TO FOF 33
The Petitioners state that this finding of fact accurately represents what permit special condition number 10 states. Yet, the Petitioners' take exception to the finding on the basis that this "clearly is not an accurate statement of what will occur if this permit modification issues." There is no basis for Petitioners' exception on this ground, therefore, this exception is rejected.
EXCEPTION TO FOF 34
In FOF 34, the hearing officer found that "there is no evidence that, except as specifically permitted and approved by the District, there has been alteration of historical discharge rates or routes." Petitioners take exception to this finding, stating that there was extensive testimony that there has been considerable alteration of historic discharge rates or routes which have not been specifically permitted by the District. There is competent, substantial evidence in the record that the drainage routes and rates from the TCWMD project have neither changed nor are proposed to be changed in this modification. See, also, the above response to FOF 29.
Also in this exception, Petitioners address the hearing officer's findings in FOF 48, 49, 50 and 57, regarding the establishment of a maximum discharge rate of 39 csm. The testimony establishes that the rate used by the District in reviewing the application pursuant to the District's water quantity criteria is that previously permitted under the existing operations permit. The hearing officer found that since the 1984 permit modification, the discharge rate of 39 csm has been utilized by TCWMD and has been "accepted" by the District, but that the actual permits do not specifically identify the discharge rate as 39 csm.
There is competent, substantial evidence in the record that the previously authorized discharge rate of 39 csm is permitted. [D/A Ex. 5 - 1991 Modification - Allowable Discharge Section; Vol. I, p. 77]. There is competent, substantial evidence in the record to support this finding; therefore, the subject exception is rejected.
EXCEPTION TO FOF 35
The hearing officer's FOF 35 is based upon the testimony of Richard Rogers and Andy Tilton, which is contained in the record. [Vol. I, pp. 129-130; Vol. III, pp. 337, 382-383; Vol. IV, pp. 628-638; Vol. V. p. 822]. Petitioners contend that the hearing officer should have made a further finding related to the purpose of the permit modification. This is not a sufficient reason for overturning a finding which is supported by competent, substantial evidence; therefore, this exception is rejected.
EXCEPTION TO FOF 37
The hearing officer's finding in paragraph 37 is based upon the proposed staff report, District Exhibit 8 and testimony of expert witnesses. There is no basis for overturning this finding since it is based upon competent, substantial evidence. This exception is therefore rejected.
EXCEPTION TO FOF 38
Again, Petitioners take exception to a finding on the basis that it should include an additional finding. Finding of Fact 38 is based upon the proposed staff report and testimony accepted into evidence. [D/A Ex. 8]. There are also other assurances provided within the permit conditions which, coupled with the
District's ability to modify a permit, provide reasonable assurances that adverse impacts from farm field pumping will not occur. For example, see the condition recommended by the hearing officer in FOF 61. Petitioners' exception is not a basis for rejecting this finding.
Also, a Governing Board may not modify a finding, unless such finding is not based upon competent, substantial evidence. Moreover, a Governing Board, being limited to the record when reviewing findings of fact, may not make additional findings. The hearing officer, having the benefit of hearing all testimony and evidence as presented at the final hearing, is the only one authorized to make such findings. 8/ A Governing Board, not having the benefit of hearing the entire proceeding and weighing the credibility of witnesses and evidence submitted, is not qualified to make findings of fact. For the reasons set forth above in this response, we reject this exception.
EXCEPTION TO FOF 39
This exception relates to whether operation of the farm fields, including ditching and diking, was authorized by the 1980 operations permit. The hearing officer accepted the testimony of the District and Applicant's witnesses, over that of the Petitioners' witnesses, to support the finding that the 1980 permit authorized the operation of the farm fields which are the subject of the proposed permit modification. We note that Richard Rogers, Director of the Surface Water Management Division, is extremely familiar and knowledgeable about the permitting history of the TCWMD system. [Vol. III, pp. 360-362]. It is reasonable to accept his testimony regarding what the District's permits covered over that of a third party who was not involved with the permitting of the project. Therefore, we accept this finding of fact and reject the exception thereto.
EXCEPTION TO FOF 40
In this finding, the hearing officer concludes that the evidence establishes that the proposed modification will not result in additional discharge of surface water from the control structures and that the modification will have no substantial impact on the operation of the permitted system. This finding is supported by record evidence. [Vol. I, pp. 50-64, 77, 86, 88-90, 97-
98, 103; Vol. III, pp. 378, 396, 407].
Petitioners contend that the discharge from the proposed system will be in excess of the "pre-development rate." Petitioners fail to accept the hearing officer's determination, which is based upon substantial, competent evidence in the record, that the discharge rate the Applicant must meet is the previously permitted discharge rate of 39 csm. [Vol. I, pp. 49, 55, 64, 77, 90, 92]. See also our responses to exceptions to FOF 42 and 43. Therefore, this exception is rejected.
EXCEPTION TO FOF 41
This finding by the hearing officer states that the District's water quantity criteria is designed to insure that adverse impacts do not occur due to excess discharge. Petitioners argue that there is no criteria relative to protecting property owners adjacent to receiving waterbodies. The District's criteria in Section 3.2.1.2.b, Basis of Review, which is part of the record evidence in this case, sets forth the allowable discharge rate which is designed to protect downstream owners from additional adverse impacts. The section specifies that:
the proposed project modification must meet the allowable discharge rate; and
the allowable discharge rate for a previously permitted project is that which was set in the previous permit.
Because the hearing officer's finding is based upon record evidence, we reject this exception.
EXCEPTION TO FOF 42
This finding of fact is again a restatement of the District's criteria in the Basis of Review. There is no basis for overturning this finding. See our response to exception to FOF 41. Although it is not clear how the Petitioners' exception relates to the finding referenced, Petitioners argue that applications for permit modifications must provide all of the same assurances and information that an applicant for a new permit must provide. There is competent, substantial evidence in the record that, by meeting the District's water quantity criteria, the Applicant did provide reasonable assurances that there will be no additional adverse off-site impacts. [Vol. I, pp. 71, 103, 133-134]. Therefore, this exception is likewise rejected.
EXCEPTION TO FOF 43
The Petitioners take exception to this finding on the basis that the Applicant did not provide reasonable assurances relating to the receiving waterbody capacity or impacts on downstream property owners. Again, the District criteria in Section 3.2.2.1., Basis of Review, is designed to ensure that there will be no additional adverse impacts to downstream land owners.
There is sufficient evidence in the record that the Applicant meets this criteria, therefore, providing reasonable assurances that no additional adverse impacts will occur. Accordingly, this exception is rejected.
EXCEPTION TO FOF 44
In this finding, the hearing officer states that TCWMD provided calculations, using the hypothetical 25 year/3 day storm event required by the District, to determine that there is sufficient capacity in the surface water management system to handle the resulting stormwater. There is competent, substantial evidence within the record to support this finding. [Vol. I, pp. 50-52, 63, 90; Vol. IV, pp. 476-477].
Petitioners' take exception to this finding by challenging the calculations, modelling and data submitted by the Applicant. This particular finding by the hearing officer only states what the Applicant provided to the District. The finding does not comment on the detail or sufficiency of these calculations. This is contained in FOF 45, addressed in the next response.
Because there is record evidence to support the hearing officer's finding, this exception is rejected.
EXCEPTION TO FOF 45
The hearing officer's finding in FOF 45 is one of the cornerstone issues in this proceeding. The hearing officer found that the projections used by the Applicant provide reasonable assurances that the common detention areas have the capacity to provide adequate flood drainage and protection. There was extensive
detailed testimony given during the hearing from both the Applicant and Petitioners' expert witnesses regarding the flood routings and assumptions used to project the discharge rate and the capacity of the detention areas. A contested component of these calculations is the time of concentration used for various calculations. The Petitioners argue that the District is confused regarding the time of concentration used and that, therefore, the calculations are not adequate to provide reasonable assurances. This logic is wholly erroneous.
There is substantial, competent evidence in the record that the Applicant used a conservative time of concentration to project the peak discharge rate. [Vol. I, pp. 51, 54-55, 77; Vol. II, pp. 445, 485; Vol. III, pp. 460-461, 484-
485; Vol. VIII, pp. 1304-1306]. The hearing officer considered the testimony offered in the proceeding and made a finding based upon the weight and credibility of the expert testimony.
It is the hearing officer's role, as trier of fact, to weigh and judge the credibility of expert testimony entered in a case. It is not our role to overturn that determination unless the finding clearly lacks a basis within the record. The basis for the hearing officer's finding is clearly established in the record. [Vol. I, pp. 58-65; Vol. III., pp. 483-485]. We therefore reject this exception.
EXCEPTION TO FOF 47
This exception addresses whether the allowable discharge rate for the proposed permit modification should be 39 csm, which was previously authorized by the District, or a number which the Petitioners contend is the pre- development rate. The District's criteria clearly provides that the allowable discharge rate is that which is previously permitted. [Section 3.2.1.2., Basis of Review]. The hearing officer found in FOF 50 that the rate of 39 csm was "accepted" by the District under previous TCWMD permits. He also made a finding that the rate was not specifically listed in the permit. It is our contention that the rate of 39 csm was established in previous permits and is specifically mentioned in the Evaluation - Allowable Discharge section of the February, 1991 modification. This evaluation states that the pre- development runoff for the area has been previously permitted at 0.06 cfs/acre which converts to 38.4 csm. [D/A. Ex. 5].
The dispute as to whether the hearing officer's statement that the 39 csm was "accepted" by the District under previous permits means the same as "previously permitted" is merely a question of semantics. As a means to resolve this matter, under the authority vested with an agency in its final order to modify the conclusions of law and interpretations of administrative rules in the recommended order, 9/ we hereby conclude, as a matter of law, that in this case the previously authorized allowable discharge rate, even though not specifically stated as such in a previous permit, is established as the allowable discharge rate for future analysis under Section 3.2.1.2.b, Basis of Review.
This conclusion of law is further supported by record evidence, in the form of the 1991 permit modification, which indicated that the "pre-development runoff for the area has been previously permitted at 0.06 cfs/acres." This rate may then be converted to csm" through a simple mathematical equation described in the record. [Vol. V. p. 754]. See also our response to exception to FOF 48 below. Therefore, based upon the foregoing, this exception is rejected and conclusion of law number 93 is hereby created.
EXCEPTION TO FOF 48
This finding states that a previously permitted discharge rate of 39 csm was accepted by the District for discharges from the TCWMD project. The Petitioners' contend that the 39 csm does not apply to the same 51,000 acre area encompassed by the proposed permit modification. As referenced above, the 39 csm discharge rate was set forth in the 1991 permit as the "previously permitted" rate based upon pre-development runoff. The 1991 modification encompassed farm field areas which discharged to the Caloosahatchee River via Cypress Creek, Spanish Creek and County Line Canal. There is no evidence in the record that there were different allowable discharge rates set for various basins within the project. Therefore, the hearing officer has a basis in the record through the previous permitting staff reports and expert testimony that
39 csm is the allowable discharge rate for the proposed permit modification, thus, we reject this exception.
EXCEPTION TO FOF 50
This exception again addresses the issue of the 39 csm allowable discharge rate. See our responses herein to the exceptions to FOF 47 and 48. For the reasons set forth in the previous rulings on the Petitioners' exceptions, this exception is likewise rejected.
EXCEPTIONS TO FOF 51 AND 52
The hearing officer heard extensive testimony from both the Applicant's expert and the Petitioners' factual witness regarding the time of concentration used to estimate the discharge rate. The hearing officer made a finding that the time of concentration of one hour was used by the Applicant as the time it takes for water to move from the farm fields to the control structure in each sub-watershed. This finding is based upon the testimony of the District and Applicant's expert witnesses. [Vol. I, p. 56; Vol. III, pp. 493-494]. Mr.
Tilton testified that the time of concentration of one hour was used for the purpose of being as conservative as possible. [Vol. I, p. 56]. The hearing officer accepted Mr. Tilton's testimony regarding the calculations based upon his expertise. [See FOF 54] As stated in many of the rulings contained herein, we may not disturb a finding made by the hearing officer unless there is no clear evidence in the record supporting the finding. This finding is clearly based upon expert testimony. The subject exceptions are therefore rejected.
EXCEPTION TO FOF 53
FOF 53 states that the Applicant did not include the projected travel time through ditches, swales and existing low areas, which resulted in a lower time of concentration and a higher peak discharge rate. [Vol. I, pp. 56-59]. This finding is based upon the expert testimony of the Applicant's engineer contained in the record; thus, the exception is rejected.
EXCEPTION TO FOF 54
In this finding, the hearing officer states that there appeared to be some confusion on the part of District staff as to the application of the time of concentration by the Applicant. Regardless of this statement, the hearing officer found that the Applicant's engineer is a duly qualified expert in his field and that his testimony and projections are reasonable and are credited." There is no basis for taking exception to the hearing officer's determination as
to the credibility of an expert witness. This is within the sole discretion of the hearing officer as trier of fact. Therefore, this exception is hereby rejected.
EXCEPTION TO FOF 56
Petitioners' exception is not to the lack of evidence in the record to support this finding. Rather, they state that the hearing officer erred because he did not make a further finding regarding the pumping of the farm fields. The hearing officer's finding is based upon the testimony of the Applicant's engineer and is accepted. [Vol. II, p. 219]. This exception is therefore rejected.
EXCEPTION TO FOF 57
This exception goes to the hearing officer's determination of the credibility and weight of the evidence. The Petitioners continue to assert that the Applicant's engineer stated that the pre-development rate of discharge for the project is 25-30 csm. The testimony of the project engineer is being misconstrued by the Petitioners. Mr. Tilton testified that with the farm fields not operational, the discharge rate would be approximately 25-30 csm. The farm fields in a non-operational state have no pumped discharge and contain dikes which hold back water. This situation is not analogous to the "pre-development" state of the project. Mr. Tilton's testimony does not establish the pre- development discharge rate for the project. [Vol. I, pp. 65,116]
Additionally, the hearing officer's finding addresses the Applicant's projected discharge rate for the Telegraph Swamp control structures within the established maximum of 39 csm previously accepted by the District. There is ample testimony in the record regarding the establishment of the projected discharge rate by the Applicant's engineer, as well as what is the allowable discharge rate for the project. [Vol. I, pp. 49, 55, 64, 77, 90, 92.]. For the reasons set forth herein, this exception is rejected.
EXCEPTION TO FOF 58
The hearing officer found that the offsite inflows to the TCWMD project are relatively insignificant in terms of whether the Applicant's discharge projections are reasonable. This is based upon testimony in the record regarding the inflows. [Vol. I, pp. 109-111; Vol. II, pp. 221, 305-309; Vol.
VIII, p. 1347]. Petitioners' exception to this finding goes to the weight of the evidence presented. This is not a proper basis for rejecting this finding, thus, we reject the exception.
EXCEPTION TO FOF 59
This exception again addresses the peak discharge rate and the allowable discharge rate of 39 csm. See the responses herein to Petitioners' exceptions to FOF 47 and 48. For the reasons set forth in the previously noted rulings, this exception is likewise rejected.
EXCEPTION TO FOF 60
The Petitioners state that they submitted calculations using the time of concentration that the District believed was used. They further conclude that this calculation resulted in an excessive peak discharge rate. The hearing officer heard the testimony of both the Applicant's engineer, as well as the
Petitioners' engineer, and concluded that the Applicant's calculations and projections were reasonable and that the Petitioners' calculations were unreasonable. It is within the hearing officer's discretion to accept or reject testimony of experts based upon whether that testimony is reasonable and credible. It is not within our authority to reconsider that determination, thus, we reject this exception.
EXCEPTION TO FOF 61
The hearing officer recommended a special condition be added to the permit which restricted the pumped discharge from farm fields which do not currently have installed pumps. The condition then lists those fields which currently have pumps. The hearing officer concluded from the evidence submitted that a limitation on the pump discharge should be required. There is no basis for expanding or modifying that condition to require farms to construct specific above-ground impoundment retention areas. This exception is therefore rejected.
EXCEPTION TO FOF 62
The hearing officer concludes in this finding that the proposed permit modification will not result in adverse impacts to surface and groundwater levels and flows and that the modification will not adversely alter the current operation of the project. The greater weight of the expert testimony in this proceeding supports this conclusion. In particular, testimony regarding the allowable discharge rate and the projection of peak discharge rate for the modification establishes that there is no change in offsite flows caused by the proposed modification. [Vol. I, pp. 49, 51-52, 64, 77, 92; Vol. VIII, p. 1345]. Thus, this exception is rejected.
EXCEPTION TO FOF 63
This finding concludes that the adverse impacts being experienced by the Petitioners are the result of alterations preceding permitting of the project in 1980. This conclusion is based upon the conclusions made in the 1980 operations permit and the expert testimony of Richard Rogers, who is extensively familiar with the permitting history of this project. [Vol. III, pp. 360-361, 452-455]. The 1980 permit states that impacts were caused by activities outside the control of the TCWMD. [Vol. II, p. 253]. Mr. Rogers testified that manmade alterations, in particular the County Line Dike, have been corrected pursuant to District requirements. [Vol. III, p. 404] Mr. Rogers testified that there were further natural alterations which have taken place which have altered historic flows.
The main issue raised by the Petitioners in this exception is that the capacity of the receiving waterbodies has been reduced over the years. The evidence in the record establishes that the permit modification will not increase discharges to the receiving waterbodies. [Vol. I, pp. 49, 64; Vol. VIII, p. 1345]. The District does not reanalyze the receiving waterbody capacity when a permit modification does not propose discharges in excess of the previously permitted rate. [Vol. III, p. 407]. This is a reasonable interpretation of the District's water quantity criteria.
Additionally, the hearing officer ruled pursuant to a motion in limine that the scope of the proceeding is limited to whether this permit modification should issue. The Petitioner may not challenge previously issued permits through this particular proceeding. Therefore, based on the foregoing, this exception is hereby rejected.
EXCEPTION TO FOF 65
The hearing officer considered the testimony of all parties regarding the flooding of Cypress Creek and alterations in the past 30 years and determined that such testimony is neither persuasive nor relevant. He found that the proposed modification will not adversely affect the existing situation in the receiving waterbodies. There is evidence in the record, as cited above in defense of FOF 30, 40, and 62, which supports this finding. Pursuant to our rulings in FOF 30, 40, and 62, we rule similarly and reject this exception.
EXCEPTION TO FOF 67
This finding concludes that the hearing officer found the Applicant's backwater profile study to be reasonable and credited. The hearing officer concludes that, based upon the study, only ten percent of the water discharged from Telegraph Swamp enters the Bullhead Strand - South Lightered Canal - Cypress Creek watercourse. Petitioners challenge the backwater profile study and conclusions. The finding is clearly based upon evidence in the record, particularly the backwater profile study and Andy Tilton's expert testimony. [Vol. VIII, pp. 1313-1321, 1329-1334, 1359; D/A. Ex. 10,11]. This exception is
therefore rejected.
EXCEPTION TO FOF 68
The Petitioners again argue the weight of the evidence presented regarding the conclusions found in the backwater profile study. The hearing officer found in FOF 67 that the study is reasonable and credited. See our response to FOF 67 above. As stated previously, we are not authorized to reject a finding unless it lacks a basis in the record of competent, substantial evidence.
Petitioners also restate erroneously that the Applicant's engineer testified that the pre-development discharge rate is 25- 30 csm. See our response to FOF 57 above. Therefore, this exception is hereby rejected.
EXCEPTION TO FOF 69
This finding of fact is based upon the expert opinion of the Applicant's engineer. [Vol. IV, pp. 672-673]. Petitioners concede that this was the testimony presented at hearing. Regardless, they allege that this opinion is not based upon field work or engineering data. The hearing officer determined that Mr. Tilton's testimony regarding water flow in the Big Island Canal is a reasonable and acceptable expert opinion. Properly disregarding Petitioners' request that we reweigh the evidence, this exception is rejected.
EXCEPTION TO FOF 70
This exception is to a finding which summarizes previous findings made by the hearing officer. For the reasons set forth in our previous rulings to exception to FOF 40, 43, 47, 62 and 63, this exception is likewise rejected.
EXCEPTION TO FOF 71
The hearing officer found that lack of individual detention areas for all the farm fields is immaterial since there is sufficient downstream detention capacity in the common detention areas. This finding is based upon the testimony of both the District and the Applicant's expert witnesses. [Vol. III,
pp. 436-437, 465-466, 495-496]. This testimony establishes that the common detention areas have storage capacity even during heavy rainfall events when the water is passing through the weirs. Since this finding is based upon record evidence, this exception is rejected.
EXCEPTION TO FOF 72
There is competent, substantial evidence within the record that Telegraph Swamp is not an above-ground impoundment, as that term is used pursuant to the District's permitting criteria. [Vol. III, pp 433, 436-437]. There is also testimony that the District's above-ground impoundment criteria are not applicable to Telegraph Swamp. [Vol. III, pp. 437, 481-482]. The hearing officer accepted this testimony over that of the Petitioners.
Being factually based upon record evidence, we reject this exception.
EXCEPTION TO FOF 73
The hearing officer found that the Basis of Review is directed toward applications for new construction. He also found that it is reasonable for the District not to require all elements of the Basis of Review for existing operations. These findings are based upon Section 1.6, Basis of Review, as well as the expert testimony of Richard Rogers [Vol. III, pp. 470-472], who has worked with the District's permitting criteria for over 17 years [Vol. III, p.
357], and has participated extensively in the development of the surface water management criteria. [Vol. III, pp. 359, 462]. There is competent, substantial evidence to support the subject finding; therefore, this exception is rejected.
EXCEPTION TO FOF 74
The Petitioners take exception to this finding on the basis that the original proposed permit staff report did not list Cypress Creek as a receiving waterbody. The hearing officer found that, although this is true, the prior permitting actions clearly addressed the fact that surface waters discharge to Cypress Creek. He concluded that failure to include this reference in the staff report is irrelevant. There is extensive record evidence that because the proposed modification meets the authorized discharge rate, downstream receiving waterbody capacities will not be altered nor adversely affected. [Vol. Ill, pp. 378, 462]. Therefore, because there is record evidence to support this finding, this exception is rejected.
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 to a Governing Board for consideration only. 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." 10/ However, when an agency is exercising it's discretion, it has the obligation to explain why it disagrees with hearing officer's legal conclusions. 11/
EXCEPTION TO COL 79
The hearing officer concluded in this statement that the proposed permit modification could have been made as a letter modification under Rule 40E- 4.331(2)(b), Fla. Admin. Code. This is based upon the facts presented at hearing. As Petitioners point out, this point is moot. The Applicant applied for an individual permit modification pursuant to Rule 40E-4.331(2)(a), Fla.
Admin. Code. Although this conclusion of law has no bearing as to whether the subject permit modification should issue, there is no factual or legal basis for overturning this conclusion; therefore, we reject this exception.
EXCEPTION TO COL 84
This argument relates to whether an application for a permit modification to an operations permit must provide all items listed in Appendix 1 to the Basis of Review. It was previously established that this project was granted an operations permit rather than a construction permit. The issue then becomes whether the Applicant submitted the information that is necessary for issuance of a modification to an operations permit. The hearing officer made a specific finding in FOF 73 that the District reasonably does not require operation permit applicants to furnish all the same information as is required of an applicant for a construction permit. The District's Guidance for Preparing an Application for a Surface Water Management Application, Form 0645, states in the introduction that "an application for a modification to an existing permit often need not contain all the items described on the pages which follow, depending on what has been previously provided and the nature of the proposed modification." The guidance document contains a listing of the same information set forth in Appendix 1. Under a reasonable interpretation of the District's current criteria, an Applicant is not required to provide all of the information required by Appendix 1 for the subject permit modification. The Petitioners have presented no valid legal or factual argument why we should disregard the hearing officer's recommendation; therefore, this exception is rejected.
EXCEPTION TO COL 86
This conclusion of law and corresponding exception revisits the same issues set forth in COL 84. Therefore, for the reasons enumerated in our response to COL 84, we likewise reject this exception.
EXCEPTION TO COL 88
This conclusion of law is a summary of the hearing officer's findings of fact and application of relevant legal principles. The conclusion, based upon all evidence presented, is that the proposed permit modification complies with the District's applicable rules and criteria set forth in Chapter 40E-4, and the Basis of Review, Fla. Admin. Code. Specifically, the hearing officer found that the applicable water quantity criteria are met. Since this is a reasonable interpretation of the District's requirements and application of the water quantity criteria, this exception is hereby rejected.
EXCEPTION TO COL 89
In this conclusion, the hearing officer determined that the evidence regarding impacts from the 1992 storm event does not establish that the Telegraph system fails to meet the District's permitting criteria. In fact, to further support this conclusion, there is substantial testimony in the record that the storm of June, 1992, was in the range of a 100-500 year storm event.
[Vol. II, pp. 297-299, 313-315]. The District's water quantity criteria requires an applicant to provide assurances that its surface water management system furnishes adequate flood protection in a 25 year/3 day storm event.
Again, this conclusion by the hearing officer is based upon a consideration of the facts found pursuant to the hearing. Therefore, this exception is rejected.
EXCEPTION TO COL 90
Petitioners again contend that the Applicant should have been required to submit all of the information required in Appendix 1, Basis of Review. We ruled upon this issue in our response to exception to COL 84 and we rule the same herein. Thus, this exception is likewise rejected.
EXCEPTION TO COL 91
See our response above to Petitioner Alva's exception to COL 91. We rule similarly and hereby reject this exception.
EXCEPTION TO COL 92
The hearing officer found that Petitioner English's contention regarding the "reasonable use doctrine" is outside the scope of the instant proceeding. The reasonable use doctrine, as defined by Petitioners' legal citations, is a cause of action filed in a judicial forum. In this particular case, the application of the "reasonable use doctrine" is not within the scope of review of this administrative proceeding. Therefore, this conclusion of law is not rejected. The Petitioner is free to file the common law action in the appropriate judicial forum.
The District permits surface water management projects based upon specific design criteria. If an applicant meets these criteria, which are designed to insure that the permit will not result in additional adverse impacts, the permit will issue. The District's criteria specifically state that discharges shall not result in additional adverse impacts. [Section 3.2.1.2, Basis of Review].
As a matter of law, the hearing officer's conclusion is a reasonable application of the District's water quantity criteria.
The hearing officer found in FOF 30, 34, 40, 43, 47, 48, 62, 63, 65, 68, 70 and COL 79 that the proposed modification will not result in an alteration of the current discharge rate and, therefore, will not result in additional adverse off-site impacts. At the present time, there exists no basis for denying a permit modification which does not alter or exacerbate regional problems. For all of the reasons set forth herein, this exception is rejected.
EXCEPTION TO THE HEARING OFFICER'S RECOMMENDATION
For the totality of reasons stated above, the hearing officer's recommendation is based upon competent, substantial record evidence and is based upon reasonable application of the District's permitting criteria Therefore, we reject this exception.
EXCEPTION TO RECOMMENDED ORDER APPENDIX
The Petitioners take exception to those portions of the Appendix which constitute rulings on their respective proposed findings of fact. However, the Petitioners expressly state in this exception that their exceptions to the rulings on their proposed findings of fact are fully discussed in their
exceptions to the hearing officer's findings of fact. Since we have previously ruled herein with particularity and specificity on each of the Petitioners' exceptions to the hearing officer's findings of fact set forth in his Recommended Order, we need not make repetitive rulings, but note that our rulings set forth above apply in all respects to the Petitioners' exceptions to the subject Appendix.
ORDER
WHEREFORE, having considered the Recommended Order entered by the Hearing Officer, the Exceptions filed thereto by the Petitioners, and 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 Petitioners' Exception to the Recommended Order regarding Finding of Fact No. 12 is accepted on the grounds set forth above. Therefore, Finding of Fact No. 12 is modified to reflect that there are seven separate water management basins. In accord, the last sentence in Finding of Fact No. 13 is hereby modified to also signify seven water management basins;
The Petitioners' Exception to the Recommended Order regarding Finding of Fact No. 27 is accepted. Therefore, Finding of Fact No. 27 is modified to read as follows: District enforcement staff have occasionally noted "performance deficiencies" on the TCWMD property, and on September 17, 1986, issued a Notice of Violation.;
The remainder of Petitioners' Exceptions are hereby denied;
Conclusion of Law No 93 is hereby created as set forth in our response to exception to finding of fact number 47;
The Hearing Officer's Recommended Order dated April 1, 1994, 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 Permit Modification No. 08- 00004-S attached hereto as Exhibit B, is hereby granted to the Telegraph Cypress Water Management District, with the inclusion of the following additional permit conditions:
Special Condition No. 17--Discharge structures in the Telegraph Swamp basin shall remain fixed so that discharge cannot be made below the control elevations, except that structure gates and weirs may only be removed during emergency conditions upon notification to and consent by the District's Fort Myers Service Center regulatory area manager or designee.
Special Condition No. 18--Possession of the keys to unlock the control gates shall remain with the Permittee which is an acceptable
governmental agency as that term is used in the District's surface water management permitting rules.
Special Condition No. 19--Ditches and dikes associated with the farm fields encompassed by this authorization shall be constructed/ maintained in conformance with the "Typical
Field Layout and Detail Sheet," revised 10/12/93.
Special Condition No. 20--Pumped discharge from the farm fields for which pumps are not currently installed shall be limited to 75 gallons per minute per acre of farmed area. Pumps are currently installed in field numbers 7, 8, 9, 10, 12, 14, 15, 24, north and south, 28, east half of 34, 64, 67, 68, 69, and 80.
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 request for review with the Commission and serving a copy on the Department of Environmental Protection 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 request for review, the Commission may accept a request 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 of that right to review.
ENDNOTES
1/ 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).
2/ DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1975); Gould v. Division of Land Sales, 477 So. 2d 612 (Fla. 1st DCA 1985)
3/ Florida Chapter of Sierra Club v. Orlando Utility Commission, 436 So. 2d 383, 389 (Fla. 5th DCA 1983).
4/ Gershanik v. Dept. of Professional Regulation, 458 So. 2d 302 (Fla. 3d DCA 1984), rev. denied, 462 So. 2d 1106 (Fla. 1985); H.K. Corp. v. Estate of Miller, 405 So. 2d 218, 219 (Fla. 3d DCA 1981).
5/ Friends of Children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345 (Fla. 1st DCA 1987).
6/ Berry v. Department of Environmental Regulation, 530 So. 2d 1019 (Fla. 4th DCA 1988).
7/ South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 4th DCA 1989); Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985); Smith v. Dept. of Health and Rehabilitate Services, 555 So. 2d 1254 (Fla. 3d DCA 1989); Howard Johnson Co. v. Kilpatrick, 501 So. 2d 59, 60 (Fla.
1st DCA 1987).
8/ Friends of Children, supra.
9/ Section 120.57(1)(b)10., Fla. Stat.; Florida Department of Correction v. Provin, 515 So. 2d 302, 305 (Fla. 1st DCA 1987).
10/ Baptist Hospital, Inc. v. State Department of Health and Rehabilitative Services, 500 So. 2d 620, 623 (Fla. 1st DCA 1986).
11/ McDonald v. Department of Banking and Finance, 346 So. 2d at 584 (Fla. 1st DCA 1977).
DONE AND SO ORDERED this 12th day of May, 1994.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY ITS GOVERNING BOARD
BY: CHAIRMAN
(Corporate Seal) ATTEST:
By: Assistant Secretary
LEGAL FORM APPROVED SFWMD OFFICE OF COUNSEL
By:
Date:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that one original and one true and correct copy of the foregoing has been furnished to The Honorable William Quattlebaum, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; that true and correct copies of the foregoing have been furnished to Melville G. Brinson, III, Esquire, 1415 Hendry Street, Fort Myers, Florida 33902, Scott Barker, Esquire, 2300 McGregor Street, Suite 2, Fort Myers, Florida 33902 and Frank Pavese, Sr., Esquire, 1833 Hendry Street, Fort Myers, Florida 33902 by Federal Express; and that true and correct copies of the foregoing have been hand delivered to John
J. Fumero, Esquire and Toni M. Leidy, Esquire, South Florida Water Management District, Office of Counsel, 3301 Gun Club Road, Florida 33406 on this 22nd day of June, 1994.
By: TONY BURNS
District Clerk
FILED WITH THE CLERK OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT ON: June 22, 1994
BY DEPUTY CLERK
=================================================================
DISTRICT COURT OPINION
=================================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
JAMES D. ENGLISH, JR., and IN THE DISTRICT COURT OF APPEAL CYPRESS CREEK PARTNERSHIP, OF FLORIDA
and ALVA CEMETERY, INC., SECOND DISTRICT
Appellants, CASE NO. 94-02471 DOAH CASE NO. 92-6900
v.
TELEGRAPH CYPRESS WATER MANAGEMENT DISTRICT and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Appellees.
/ Opinion filed June 2, 1995.
Appeal from the Governing Board of the South Florida Water Management District.
Melville G. Brinson, III, of Smoot, Adams, Edwards & Green, Fort Myers, for Appellants.
R. Scott Barker of R. Scott Barker, P.A., Fort Myers, for Appellee Telegraph Cypress Water Management District.
Barbara A. Markham, John J. Fumero, and Toni M. Leidy, West Palm Beach, for Appellee South Florida Water Management District.
PER CURIAM.
Affirmed.
RYDER, A.C.J., and PARKER and LAZZARA, JJ., Concur.
MANDATE FROM
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
STYLE: James D, English, Jr. v. Telegraph Cypress Water Mgmt. Dist.
COUNTY: Lee
APPELLEE CASE NO: 94-02471
TRIAL COURT CASE NO: 92-6900 92-6901
This cause having been brought to this Court by appeal and after due consideration, the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with the opinion of this court and with the rules of procedure and laws of the State of Florida.
Witness, The Honorable Richard H. Frank, Chief Judge of District Court of Appeal of the State of Florida, Second District, and the Seal of the said court at Lakeland, Florida on this day.
July 7, 1995
William A. Haddad
Clerk District Court of Appeal of Florida, Second District
| Issue Date | Proceedings |
|---|---|
| Jul. 10, 1995 | Second DCA Opinion and Mandate filed. |
| Feb. 01, 1995 | Appellants` reply to answer briefs of Appellee, South Florida Water Management District and Appellee, Telegraph Cypress Water Management District filed. |
| Nov. 28, 1994 | Request for Oral Argument and Initial Brief of Appellants filed. |
| Sep. 21, 1994 | Notice of Appearance as Appellate Counsel of Record for Appellant, Alva Cemetery, Inc. filed., Motion for Order to the Clerk filed., Motion for Extension of time to file initial brief filed. |
| Jul. 29, 1994 | Directions to the District Clerk filed. |
| Jul. 20, 1994 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Jun. 23, 1994 | Final Order filed. |
| Apr. 01, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held January 25-27, 1994. |
| Mar. 29, 1994 | Order on Motion to Strike sent out. |
| Mar. 21, 1994 | South Florida Water Management District`s Motion to Strike filed. |
| Mar. 21, 1994 | James D. English, Jr. and Cypress Creek Partnership`s Reply to South Florida Water Management District`s Motion to Strike filed. |
| Mar. 14, 1994 | (Respondent) Notice of Amended Filing; South Florida Water Management District`s Proposed Recommended Order w/Exhibit-A filed. |
| Mar. 11, 1994 | (Petitioner) Certificate of Service filed. |
| Mar. 11, 1994 | Telegraph Cypress Water Management District`s Proposed Recommended Order filed. |
| Mar. 11, 1994 | (Proposed Recommended) Order (unsigned) filed. (From Frank A. Pavese, Sr. |
| Mar. 11, 1994 | South Florida Water Management District`s Proposed Recommended Order w/Exhibit-A; (Petitioner) Proposed Recommended Order filed. |
| Mar. 08, 1994 | Transcript (Motion in Limine); Notice of Filing Certified Copy of Transcript of Motion in Limine filed. |
| Mar. 01, 1994 | Transcript (Vols 1-8); Notice of Filing Original Final Hearing Transcripts filed. |
| Feb. 10, 1994 | District/Applicant Exhibit-9 filed. |
| Feb. 03, 1994 | (2) Subpoena Ad Testificandum w/Affidavit of Service filed. (From Melville G. Brinson) |
| Feb. 03, 1994 | (Petitioner) Exhibits (1-Box/TAGGED) filed. |
| Jan. 27, 1994 | CASE STATUS: Hearing Held. |
| Jan. 18, 1994 | Petitioners` Third List of Additional Exhibits filed. |
| Dec. 22, 1993 | (4) Subpoena Ad Testificandum w/Return of Service filed. (From Melville G. Brinson, III) |
| Nov. 19, 1993 | Notice of Hearing sent out. (hearing set for 1/25-27/94; 9:30am; Ft.Myers) |
| Nov. 15, 1993 | Letter to WFQ from Frank A. Pavese, Sr. (re: completing hearing) filed. |
| Nov. 09, 1993 | CC Letter to Melville G. Brinson et al from R. Scott Barker (re: completing hearing ASAP) filed. |
| Nov. 09, 1993 | Subpoena Ad Testificandum w/Return of Service filed. (From Melville G. Brinson) |
| Nov. 09, 1993 | Subpoena Ad Testificandum w/Return of Service filed. (From Melville G. Brinson) |
| Nov. 08, 1993 | Letter to WFQ from Melville G. Brinson, III (re: Mr. Barker`s Ltr of November 4, 1993 regarding the completion of hearing) filed. |
| Nov. 05, 1993 | Letter to WFQ from Melville G. Brinson, III (re: Mr. Barker`s Ltr of November 4, 1993 w/reference to completing hearing as soon as possible) filed. |
| Nov. 05, 1993 | Subpoena Ad Testificandum; Affidavit of Service filed. (from M. Brinson) |
| Nov. 02, 1993 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Nov. 02, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Filing Original Deposition; Deposition of Anthony M. Waterhouse filed. (filed with hearing officer) |
| Nov. 02, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Second Amended Response to South Florida Water Management District`s Third Request to Produce (+ attachments`s) filed. (filed with hearing officer) |
| Nov. 01, 1993 | Petitioners` Opposition to South Florida Water Management District`s Motion in Limine; Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Amended Response to South Florida Water Management District`s Third Request to Produce rec |
| Oct. 27, 1993 | Petitioners` Additional Witness List filed. |
| Oct. 27, 1993 | (Petitioners) Notice of Taking Deposition filed. |
| Oct. 27, 1993 | South Florida Water Management District`s Motion in Limine w/(TAGGED)attachments; Parties Revised Joint Prehearing Stipulation filed. |
| Oct. 26, 1993 | Parties Revised Joint Prehearing Stipulation w/cover ltr filed. |
| Oct. 25, 1993 | Parties (Revised) Joint Prehearing Stipulation w/cover ltr filed. |
| Oct. 21, 1993 | South Florida Water Management District`s Notice of Substitution/Addition of Expert Witness w/South Florida Water Management District`s Motion to Take Official Recognition w/Exhibit-A filed. |
| Oct. 15, 1993 | Notice of Producing Documents, Photographs, and Video Tapes by Petitioners, James D. English,Jr. and Cypress Creek Partnership; Petitioner,Cypress Creek Partnership`s Reply to Third Request to Produce Documents; Petitioners` Second List of Add |
| Oct. 15, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership's Notice of Filing Original Answers to Interrogatories; Notice ofService of First Set of Interrogatories to South Florida Water Management District + other supporting papers rec' |
| Oct. 14, 1993 | Order Denying Motion to Prefile Testimony and Order Requiring Joint Response sent out. |
| Oct. 12, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Reply to Motion to Prefile Direct Testimony filed. |
| Oct. 12, 1993 | Petitioner, Alva Cemetery, Inc. Reply to Motion to Prefile Direct Testimony filed. |
| Oct. 01, 1993 | Third Request to Produce Documents; Motion to Prefile Direct Testimony filed. |
| Sep. 20, 1993 | Notice of Hearing sent out. (hearing set for November 2-5; 9:00am; Fort Meyers) |
| Sep. 20, 1993 | Petitioners List of Additional Exhibits filed. |
| Sep. 07, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Filing Original Deposition w/(TAGGED) Deposition of Andrew Tilton filed. |
| Aug. 24, 1993 | (Respondent) Motion for Enlargement and to Reschedule Final Hearing Days filed. |
| Aug. 20, 1993 | (ALL TAGGED) Deposition of Benjamin C. Pratt; Deposition of Richard A. Rogers; Deposition of Ronnie S. Searcy; Deposition of Donna Smith; Deposition of Andrew Douglas Tilton; Deposition of Mark White filed. |
| Aug. 20, 1993 | Parties Joint Prehearing Stipulation; (ALL TAGGED) Deposition of Donald Louis Barselou; Deposition of William J. Curry, III; Deposition of Boyce Dixon; Deposition of Timothy W. Exkert; Deposition of James D. English, Jr.; Deposition of James D. Hull; De |
| Aug. 17, 1993 | South Florida Water Management District`s Preliminary Unilateral Prehearing Stipulation filed. |
| Aug. 16, 1993 | Petitioners, James D. English, Jr. & Cypress Creek Partnership`s Notice of Taking Deposition filed. |
| Aug. 12, 1993 | Letter to WFQ from Melville G. Brinson, III (re: request for extension) filed. |
| Aug. 10, 1993 | Letter to WFQ from Melville G. Brinsion, III (re: Extension) w/cover ltr filed. |
| Jul. 29, 1993 | Respondent Telegraph Cypress Water Management District`s Response to Petitioners, James D. English, Jr. & Cypress Creek Partnership`s Second Request to Produce filed. |
| Jul. 15, 1993 | (Respondent) Resistance to Petitioner James D. English, Jr.`s Motion to Compel Directed to Respondent Telegraph Cypress Creek Water Management District with Reference to Interrogatories Served on February 24, 1993 filed. |
| Jul. 15, 1993 | Notice of Service of Answered Interrogatories; REsistance to Petitioner Cypress Creek Partnership's Motion to Compel Directed to RespondentTelegraph Cypress Creek Water Management District With Reference to Interrogatories Served on April 13, 1993 rec' |
| Jul. 08, 1993 | Petitioner, Cypress Creek Partnership`s, Motion to Compel Directed to Respondent, Telegraph Cypress Water Management District filed. |
| Jul. 08, 1993 | Petitioner, James D. English, Jr.`s Motion to Compel Directed to Respondent, Babcock Florida Company filed. |
| Jul. 06, 1993 | Notice of Service of Answered Interrogatories filed. (From R. Scott Barker) |
| Jul. 06, 1993 | Petitioner, James D. English, Jr.`s, Notice of Conflict filed. |
| Jul. 01, 1993 | Order Denying Motion for Extension of Time sent out. |
| Jun. 30, 1993 | Order Granting Continuance sent out. (hearing cancelled) |
| Jun. 30, 1993 | Notice of Hearing sent out. (hearing set for 8/26-27/93; 9:15am; Ft Myers) |
| Jun. 30, 1993 | (Respondent) Motion for Extension of Time to File parties` Joint Prehearing Stipulation filed. |
| Jun. 28, 1993 | Petitioners, James D. English, Jr. & Cypress Creek Partnership`s, Second Request to Produce Directed at Telegraph Cypress water Management District; Petitioner`s, James D. English, Jr. & Cypress Cypress Creek Partnership`s, Third Request to Produce Dire |
| Jun. 21, 1993 | Notice of Service of Answered Interrogatories; Answers to Interrogatories Propounded to Telegraph Cypress Water Management District by Alva Cemetary Inc. filed. |
| Jun. 14, 1993 | Notice of Production of Documents filed. |
| Jun. 07, 1993 | Letter to WFQ from R. Scott Barker (re: Discovery) filed. |
| Jun. 03, 1993 | Subpoena Duces Tecum w/Affidavit of Service filed. (From Melville G. Brinson) |
| Jun. 01, 1993 | CC Letter to Penelope Bell from R. Scott Barker (re: Motion to Reschedule Final Hearing & unavailable dates for hearing) filed. |
| May 25, 1993 | (Respondent) Motion to Reschedule Final Hearing filed. |
| May 17, 1993 | (Petitioner) Subpoena Ad Testificandum w/Affidavit of Service & Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Deposition filed. |
| May 17, 1993 | (2) Subpoena (Without Deposition) Duces Tecum filed. (From Melville G. Brinson) |
| May 13, 1993 | Notice of Appearance (Toni M. Leidy) filed. |
| May 11, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s First Amended Notice of Taking Depositions (as to time only) filed. |
| May 10, 1993 | Notice of Hearing sent out. (hearing set for July 15-16, 1993; 9:30am; Fort Myers) |
| May 05, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Amended Notice of Taking Depositions (as to time only) filed. |
| Apr. 30, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Production From Non-Party filed. |
| Apr. 29, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Depositions filed. |
| Apr. 29, 1993 | Petitioners, Cypress Creek Partnership and James D. English,Jr.`s Request to Produce Directed to Respondent Telegraph Cypress Water Management District; Petitioners, Cypress Creek Partnership and James D. English, Jr.`s, Second Request to Produce Direct |
| Apr. 23, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Deposition filed. |
| Apr. 23, 1993 | Subpoena Ad Testificandum w/Affidavit of Service (3) filed. (From Melville G. Brinson) |
| Apr. 19, 1993 | Petitioners, James D.English,Jr. and Cypress Creek Partnership`s, Amended Notice of Taking Depositions on April 19 and 20 as to Time Only filed. |
| Apr. 19, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Deposition w/Subpoena Ad Testificandum filed. |
| Apr. 16, 1993 | Letter to WFQ from John J. Fumero (re: Order Granting Continuance) filed. |
| Apr. 15, 1993 | Letter to WFQ from R. Scott Barker (re: court order March 31, 1993) filed. |
| Apr. 15, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Deposition w/attached Subpoenas filed. |
| Apr. 15, 1993 | (Petitioner) Notice of Service of First Set of Interrogatories to South Florida Water Management District (propounded by Cypress Creek Partnership) filed. |
| Apr. 12, 1993 | Letter to WFQ from Melville G. Brinson, III (re: unavailable hearing dates) filed. |
| Apr. 12, 1993 | Letter to WFQ from Frank A. Pavese, Sr. (re: Court Order dated March 31, 1993 requesting the parties to proceed forthwith to file a list of dates on which parties are not available for hearing) filed. |
| Apr. 09, 1993 | Petitioners, James D.English, Jr. and Cypress Creek Partnership`s Notice of Taking Depositions w/attached Subpoenas filed. |
| Mar. 31, 1993 | Letter to WFQ from Melville G. Brinson, III (re: Attorney Fumero having no Objections to Request for Continuance filed. |
| Mar. 31, 1993 | Order Granting Continuance sent out. (hearing date to be rescheduled at a later date; parties should proceed forthwith to file a list of dates on which the parties are not available for hearing) |
| Mar. 30, 1993 | Letter to WFQ from John J. Fumero (re: Motion for Continuance) filed. |
| Mar. 29, 1993 | Motion to Continue filed. |
| Mar. 29, 1993 | Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Amended Notice of Taking Depositions filed. |
| Mar. 26, 1993 | Petitioners`, James D.English, Jr. and Cypress Creek Partnership, Amended Motion to Continue; Petitioners, James D. English, Jr. and Cypress Creek Partnership`s Notice of Taking Depositions filed. |
| Mar. 26, 1993 | (Respondent) Resistance to Motion to Continue filed. |
| Mar. 25, 1993 | South Florida Water Management District`s Objection to Motion for Continuance filed. |
| Mar. 19, 1993 | (Petitioners) Motion to Continue filed. |
| Mar. 15, 1993 | Petitioner`s, Alva Cemetery, Amended Response to Respondent`s Request for Admissions filed. |
| Mar. 09, 1993 | Petitioner`s, James D. English, Jr., Amended Response to Respondent`s, South Florida Water Management District, Requests for Admissions filed. |
| Mar. 05, 1993 | Petitioner`s, Alva Cemetery, Inc., Notice of Request to Produce to Respondent; Petitioner, Alva Cemetery, Inc.`s Response to Request to Produce Documents filed. |
| Mar. 01, 1993 | (Petitioner) Request for Entry Upon Land for Inspection and Other Purposes filed. |
| Mar. 01, 1993 | Petitioner`s Response to Request for Admissions; Notice of Service of Answered Interrogatories; Petitioner`s Objection to South Florida Water Management District`s First Set of Interrogatories; Petitioner`s Notice of Service of Interrogatories filed. |
| Mar. 01, 1993 | Petitioner`s James D. English Jr. Response to Respondent`s South Florida Water Management District Requests for Admissions filed. |
| Feb. 26, 1993 | (Petitioners) Request to Produce filed. |
| Feb. 26, 1993 | Objection to and Notice of Serving Answers to South Florida Water Management District`s First Set of Interrogatories filed. |
| Feb. 26, 1993 | Notice of Service of First Set of Interrogatories to South Florida Water Management District filed. |
| Feb. 25, 1993 | (Cypress Creek) Response to Request to Produce filed. |
| Feb. 11, 1993 | Petitioners` Notice of Service of Interrogatories filed. |
| Feb. 08, 1993 | (Petitioner) Request to Produce Documents (3); Request for Admissions filed. |
| Jan. 25, 1993 | Notice of Service of Interrogatories (3) filed. (From John J. Fumero) |
| Dec. 21, 1992 | Order Establishing Prehearing Procedures sent out. |
| Dec. 21, 1992 | Notice of Hearing sent out. (hearing set for April 19-21, 1993; 9:30am; Fort Myers) |
| Dec. 21, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-6900, 92-6901) |
| Dec. 07, 1992 | Ltr. to SLS from R. Scott Barker re: Reply to Initial Order filed. |
| Dec. 03, 1992 | (Respondent) Notice of Related Cases and Motion to Consolidate filed. |
| Dec. 03, 1992 | South Florida Water Management District`s Response to Initial Order filed. |
| Dec. 02, 1992 | Answer of Applicant filed. (From R. Scott Barker) |
| Nov. 23, 1992 | Initial Order issued. |
| Nov. 18, 1992 | Agency referral letter; Statement of Compliance with Rule 40E-1.521 Florida Administrative Code; Amended Petition for Administrative Hearing; Petition for Administrative Hearing; Supporting Documents filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 02, 1995 | Opinion | |
| May 12, 1994 | Agency Final Order | |
| Apr. 01, 1994 | Recommended Order | Reasonable assurances that permit modification will cause no additional adverse impacts. |
