STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH POLO HOLDINGS, INC., ) and WELLINGTON COUNTRY PLACE ) PROPERTY OWNERS ASSOCIATION, ) INC., )
)
Petitioners, )
)
vs. )
) ACME IMPROVEMENT DISTRICT and ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )
)
Respondents. )
Case No. 03-2469
)
RECOMMENDED ORDER
On December 2-5, 2003, a final hearing was conducted in this case in Palm Beach County, Florida, before J. Lawrence Johnston, a duly-appointed Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner Wellington Country Place Property Owners Association:
Larry A. Zink, Esquire
Zink, Zink & Zink, Co, L.P.A. 3711 Whipple Avenue, Northwest Canton, Ohio 44718-2933
For Petitioner Palm Beach Polo Holdings, Inc.:
Glenn Straub, Qualified Representative President
Palm Beach Polo Holdings, Inc. 11198 Polo Club Road Wellington, Florida 33314
For Respondent South Florida Water Management District: Susan Roeder Martin, Esquire
South Florida Water Management District
3301 Gun Club Road, MSC 1410 West Palm Beach, Florida 33406
For Respondent ACME Improvement District: Claudio Riedi, Esquire
Lehtinen Vargas & Riedi, P.A.
7700 N. Kendall Drive, Suite 303
Miami, Florida 33156-7559 STATEMENT OF THE ISSUE
The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource
Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).
PRELIMINARY STATEMENT
Unless otherwise specified, all cited statute sections refer to the 2003 codification of the Florida Statutes, and all cited administrative rules refer to the current codification of the Florida Administrative Code.
On June 13, 2003, Petitioners, Palm Beach Polo Holdings, Inc. (Polo), and Wellington Country Place Property Owners Association (POA), filed an Amended Petition challenging SFWMD's Staff Report recommending approval of Acme's ERP Application No. 000512-12, authorizing modification of the 1979 permit for a SWM system to serve a 960-acre project known as the Wellington Country Place Planned Unit Development (WCPPUD). (The original petition was not referred, was never filed, and is not part of the record of the proceedings before DOAH.) On July 3, 2003, SFWMD transmitted the Amended Petition to DOAH for assignment of an ALJ; DOAH issued its Initial Order of July 8, 2003, assigning the undersigned ALJ to the case. Petitioners at that time were represented by Attorney Michael S. Tammaro.
On July 15, 2003, Petitioners requested an extension of time in which to respond to SFWMD’s transmittal order; the
request was granted. Petitioners filed their Response to SFWMD’s transmittal order on August 14, 2003, voicing among other concerns that SFWMD’s Staff Report might affect the wetland status of Peacock Pond in future application proceedings. On August 20, 2003, a telephone prehearing conference was held to discuss the proper issues for final hearing and the scheduling of final hearing, as well as other matters relating to discovery and the conduct of the final hearing. As a result, the final hearing was scheduled by agreement for December 1-5, 2003.
On August 22, 2003, SFWMD filed a Unilateral Prehearing Stipulation, clarifying that the proposed agency action was not an agency determination regarding the wetland status or wetland valuation of Peacock Pond. The same day, Petitioners filed a Supplemental Response to Transmittal Order. On September 26, 2003, Respondent Acme filed a Motion in Limine, requesting among other things that, given SFWMD’s stipulation, evidence on Peacock Pond wetland issues be excluded at final hearing.
Petitioners filed a detailed response to Acme’s Motion in Limine. The Motion in Limine was granted.
Petitioners' attorney submitted a public records request to SFWMD, and was notified on September 18, 2003, that 22 boxes of records were available for his review. Petitioners’ attorney
inspected the 22 boxes and ordered hundreds of copies. However, Petitioners never retrieved the copied documents.
On October 16, 2003, Petitioners filed a Motion for Clarification of Order Granting Motion in Limine. On October 17, 2003, SFWMD filed a Motion to Relinquish
Jurisdiction, which was supported by affidavits, asserting that there was no genuine disputed issue of material fact requiring a final hearing.
On October 24, 2003, Attorney Tammaro moved to withdraw, citing irreconcilable differences with his clients. On October 27, 2003, Glenn Straub, the president of both Petitioners, requested to be substituted as "authorized
representative for Petitioners." He stated in his request that he was "familiar with the matter and capable of representing the interests of the Petitioners." He further asserted that he was "familiar with the jurisdiction of this court, the Rules of Procedure and Evidence, the Model Rules and Standard of Conduct of Rule 28-106.107, F.A.C." Before these requests were considered, Petitioners took the deposition of Anthony Waterhouse, Director of the SWM Division in SFWMD’s ERP Department, pursuant to a Notice of Deposition Duces Tecum; and Attorney Tammaro filed a Response to the Motion to Relinquish Jurisdiction on Petitioners' behalf on October 29, 2003.
Substitution of Mr. Straub for Attorney Tammaro was granted on November 5, 2003.
On November 6, 2003, SFWMD moved to strike the Response to the Motion to Relinquish Jurisdiction as being based on issues not raised in the Amended Petition. On the same day, Petitioners filed a Request for Leave to Amend their Amended Petition to raise those issues, which Acme opposed.
A telephone hearing took place on November 7, 2003, and all pending motions, except the Request for Leave to Amend, were argued.
Petitioners deposed Terrie Bates, Director of SFWMD's ERP Department, on November 13 and 19 and deposed Acme's expert, Robert W. Higgins, P.E., on November 14 and 17, 2003.
Petitioners also deposed Ken Roundtree, Acme's Public Works Director. SFWMD and Acme jointly deposed Mr. Straub and Michael Nelson, the president of POA's property management company.
An Order on Request for Clarification, Motion to Relinquish Jurisdiction and Motion to Strike Response was issued on November 17, 2003, which: denied the Motion for Clarification and the Motion to Strike; temporarily declined to relinquish jurisdiction; and granted Petitioners four days to file pleadings or other papers to demonstrate that there was a genuine disputed issue of material fact.
During the depositions of Mr. Higgins and Mrs. Bates, several new discovery problems arose. Mr. Higgins produced his project files concerning the permit modification for his depositions but withheld nine documents, claiming privilege.
SFWMD produced all documents requested for the depositions of Mrs. Bates but declined to produce its attorney's legal file because all documents not attorney-client privileged already had been produced. Petitioners moved to compel production of the withheld documents.
SFWMD and Acme filed a unilateral Joint Pre-hearing Stipulation on November 18, 2003; and Petitioners filed a unilateral Pre-hearing Stipulation on November 20, 2003. The same day, Petitioners also filed a Second Amended Petition and a Motion to Continue Hearing Date for 30-45 days.
On November 24, 2003, POA gave notice of the appearance of Larry A. Zink, Esquire, as its counsel. After a telephone hearing on November 25, 2003, discovery disputes were addressed, and Petitioners’ Motion for Continuance was granted in part, in that the start of the final hearing was postponed by one day, to December 2, 2003, to give Petitioners additional time to complete depositions. Petitioners also were granted leave to file their Second Amended Petition, and SFWMD’s Motion to Relinquish Jurisdiction was denied.
On November 25, 2003, Petitioners filed a Motion for Reconsideration of Motion for Continuance based on the substitution of Mr. Straub for Mr. Tammaro on November 5, 2003, but asserted no grounds for a continuance not previously argued. Acme filed a Response in Opposition to Continuance.
Petitioners again deposed Mrs. Bates and Mr. Higgins on December 1, 2003. Although a continuation of the previous depositions, Petitioners attempted to serve on SFWMD a new duces tecum request seeking numerous additional documents. SFWMD had agreed voluntarily to search its files over the Thanksgiving weekend for substantial additional files requested by Petitioners. As a result, SFWMD brought dozens of additional boxes of documents to the December 1 depositions. Prior to the deposition of Mr. Higgins on December 1, 2003, Acme produced all but four of the documents for which privilege had been claimed by Acme.
During a telephone hearing on December 1, 2003, Petitioners' Motion for Reconsideration of Motion for Continuance was denied.
At the final hearing, Acme's claims of privilege as to the four documents were considered through in camera inspection, and Acme was ordered to produce two of the four documents; the two remaining documents were held to be privileged communications that Acme was not required to disclose.
Petitioners renewed their motions for continuance ore tenus several times during the final hearing. Each time, the requested continuance was denied.
Acme called Mr. Higgins, a civil engineer working on the Wellington WCPPUD Water Management Plan since 1979, as a fact witness and as an expert witness in water resource engineering in its case-in-chief. Acme also had its Exhibits 1-4 admitted in evidence. SFWMD called Mrs. Bates, who is a wetland scientist, as a fact witness and expert witness in ERP and SWM permitting and in the interpretation and application of the rules and criteria to environmental resource and surface water management permitting.
SFWMD also had its Exhibits 1, 2, and 4-10 admitted in evidence. Petitioners called Cheryl Carpenter as an expert witness in wetlands and endangered species; they also called Anthony Waterhouse, Paul Schofield, Kenneth Roundtree, Glenn Straub, Michael Nelson, and Gary Clough as fact witnesses. Petitioners also had their Exhibits 2-4 and 6 admitted in evidence.1 Objections to Petitioners' Exhibits 1 and 5 were sustained.
At the close of the evidence, Acme ordered a Transcript, and the parties asked for 30 days from the filing of the Transcript to file proposed recommended orders (PROs), which was granted. The Transcript (in seven volumes) was filed on January 13, 2004. The timely-filed PROs have been fully considered.
In addition to a PRO, Acme filed a Motion for Attorney Fees and an Amended Motion for Attorney Fees. SFWMD did not object. Petitioners filed responses in opposition.
FINDINGS OF FACT
General
SFWMD is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida.
Acme is a dependent special district of the Village of Wellington, a municipality of the State of Florida.
Polo is a Florida corporation and a developer in the Village of Wellington, Palm Beach County, Florida, including a 79-acre parcel of real property known as Peacock Pond, and other undeveloped property that are part of the subject of this permitting proceeding.
Wellington Country Place Property Owners Association, Inc. (POA) is the property owners association for WCPPUD.
Permit History
1978 Permit
In 1978, SFWMD issued to Acme the original backbone SWM permit for approximately 18,000 acres, including primary drainage Basins A (to the north) and B (to the south). Pierson
Road, which runs east/west, is the boundary between the two basins. (The backbone C-23 canal parallels Pierson Road to its immediate north.)
Acme Basin A discharges to the C-51 canal, which flows east to the Atlantic Ocean. Acme Basin B, which consists of approximately 8,680 acres, discharges to the Loxahatchee National Wildlife Refuge (Refuge) through two Acme pump stations. The Refuge is part of what is now designated the Everglades Protection Area.
The 1978 backbone permit, which modified a still earlier permit, established lower water control elevations in Basin A, which was being developed for urban use, than in Basin B, which was planned to remain largely in agricultural use. Under the 1978 permit, the maintained (regulation) stage in Basin A was set at 11' above mean sea level (msl) with discharge beginning at 12' msl during the wet season and 12' msl with discharge beginning at 13' msl during the dry season. The maintained stage in Basin B remained at 13' msl in both the wet and dry season.
Under the 1978 permit, it was anticipated that routing surface water runoff in Basin A through canals and retention lakes would provide the water quality treatment required under the criteria in effect at the time (including a requirement to provide half an inch of detention over the entire Basin A for
water quality treatment purposes.) At the time, planned residential development in the extreme southwest corner of Basin B was anticipated to generate only limited quantities of runoff due to the nature of typical development in 5-acre parcels; quality of runoff was expected to be better than from previous agricultural use. Presumably because there would be no change under the 1978 permit, water quality treatment in the remainder of Basin B was not addressed.
1979 Permit
By 1979, Acme requested a permit modification for development of the Wellington WCPPUD, which is located entirely within Acme Basin B. The PUD's northern boundary is Pierson Road; the western boundary is the backbone C-2 canal; and the eastern boundary is the backbone C-6 canal. The north/south backbone C-4 canal divides the western third of the PUD from its eastern two-thirds; it also forms the western boundary of the area known as Peacock Pond. The southern boundary of the PUD generally follows the east/west backbone C-24 canal.2
The 1979 permit modification authorized construction and operation of water management facilities in portions of WCPPUD, including a 79-acre pumped retention area (which was to become known as Peacock Pond), pump station, and control structure.
Under the 1979 permit, the maintenance stage (water control) elevation within WCPPUD only was set at 12' National Geodetic Vertical Datum (NGVD) (essentially, the same as msl) in the wet season and 13' NGVD in the dry season. The minimum road and finish floor elevations were established at elevation 16' and 17' NGVD, respectively. Without regard to seasonality, the retention area pump station was to begin operation when a stage of 13' NGVD was reached in the adjacent C-4 canal and was to discontinue operation when the system was drawn down to elevation 12' NGVD.
The 1979 permit used the 79-acre area known as Peacock Pond as its central water quality feature. Runoff from WCPPUD was to be collected in roadside swales within road right-of-ways and routed by storm sewer inlets and pipe to either a proposed 12-acre lake or one of the collector swales or canals connected to the Peacock Pond site.
The 1979 permit contemplated use of the Peacock Pond site as a "retention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then slowly lets the water out. In the 1979 permit, Acme was required to construct a berm or dike around the 79-acre area to create an above-ground impoundment to serve as the retention area. A pump was required to be installed at the northwest corner of Peacock Pond to pump water
from the adjacent C-4 canal into the retention area. The berm or dike was to detain water on the site until it reached the level of a gravity flashboard riser outfall structure at the southwest corner of the site, which would be set at 15' NGVD and would return the water to Acme's C-4 canal just downstream of a broad-crested weir, which would be set at 14' NGVD. Additional discharge from the system would be provided by two 72-inch gravity-flow flashboard risers with crest elevation 14' NGVD-- one to the C-4 canal and the other to the C-6 canal. Water discharged from the system would flow south and west through Acme's system of Basin B canals, eventually discharging to the Refuge through the two pump stations to the south and southwest.
During a rise in stage in the C-4 from 13' to 14' NGVD, the pump station in the northwest corner of Peacock Pond would continue filling the retention area. Considering pumped inflow of 4000 gallons per minute (gpm), the retention area would take 3.3 days to reach a peak stage of 16'. At that stage, 58 acre-feet of water would be stored within the retention area. SFWMD calculated that Peacock Pond would treat approximately 200 million gallons of water a year in this way.
SFWMD and Acme have taken the position in this case that the sole purpose of Peacock Pond in the 1979 permit was to serve as a water quality treatment area for the Wellington WCPPUD. It is true that the 1979 permit contemplated that flood
protection for Basin B would be provided through use of the two pumps discharging into the Refuge (Pump #1 capable of pumping at the rate of 100,000 gpm, and Pump #2 capable of pumping at 120,000 gpm). But, as subsequent events showed, the Peacock Pond retention area was part of an overall SWM system for WCPPUD that maintained water stage elevations there at a lower level than in the rest of Basin B. In other words, while designed primarily to provide water quality treatment, and not designated a flood control facility, it had some residual flood control benefit within WCPPUD.
Actual Operation After 1979 Permit
Although Peacock Pond was critical to the functioning of the SWM system for WCPPUD and Basin B, SFWMD never obtained from the owner the legal right to use it for SWM purposes. From 1979 to 1986, SFWMD was advised that the Peacock Pond facility was in substantial conformance with the permitted conditions. But some time after property, including Peacock Pond, was transferred to Landmark Land Company of Florida, Inc., the pumps in the northwest corner of Peacock Pond stopped being used regularly.3 Instead, Acme water control structure 115 (a 48-inch culvert and 72-inch flashboard riser which replaced the broad- crested weir in the C-4 canal through a 1982 permit modification) and structure 117 (discharging to the C-6 canal) were opened so that water levels in Wellington Country Place
equalized with the surrounding Acme Basin B, which was controlled by the two pump stations discharging to the Refuge to the south and southwest.
The evidence indicates, for at least the last ten years, the Basin B pumps have been operated to maintain water elevations of 12' NGVD in the wet season and 13' NGVD in the dry season--the same as for the County Place PUD under the 1979 permit. Under this water elevation control regime, flooding within WCPPUD was not a problem, but the water quality treatment from the Peacock Pond facility required under the 1979 permit was not being realized.
The pump operation schedule under the 1979 permit did not specify a "bleed-down" mechanism. As a result, when internal stages exceeded the specified control elevation threshold, both Basin B pumps would be operated at a combined rate of 220,000 gpm until the seasonal water control elevation was again established. This operation did not take full advantage of the nutrient removal capacity of the existing system.
1989 Equestrian Estates Permit Modification
In 1989, construction and operation authorization was issued for the Equestrian Estates development located within WCPPUD west of the C-4 canal. Among other things, this modification to SWM Permit No. 50-00548-S included the
construction of lakes for use as wet detention ponds and a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal. However, this control structure and its associated culvert were never constructed.
Peacock Pond Enforcement Proceedings
Around 1997, SFWMD was informed that the Peacock Pond pump was not being operated and initially brought enforcement proceedings against Polo, which had become the owner of the property in 1993, to resume pumping into Peacock Pond. At the time, SFWMD was involved in enforcement proceedings against Polo, as owner, for unauthorized dredging and filling in Peacock Pond, and SFWMD made an incorrect assumption that Polo was the operator of the Peacock Pond facility under the 1979 permit. SFWMD subsequently realized that Acme, not Polo, was the permit holder.
When Acme attempted to turn the pumps on again, Polo refused to allow Acme to do so without compensation. SFWMD then brought an enforcement action against Acme for not operating Peacock Pond in accordance with its permit. SFWMD and Acme entered into a Consent Order requiring Acme to operate Peacock Pond and the rest of the SWM system as required by the 1979 permit. Acme subsequently brought eminent domain proceedings against Polo to acquire Peacock Pond and obtained a final
judgment, but the compensation required under the final judgment was prohibitive. SFWMD and the Village of Wellington then entered into a Joint Cooperation Agreement, which (among other things) required the Village of Wellington to submit an "application to modify the Peacock Pond Permit and Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond [which] must provide reasonable assurances that demonstrate that the water quality treatment, water quantity and environmental benefits associated with the Peacock Pond Permit are maintained through the modified facility or by other equivalent measures."
In the meantime, SFWMD ordered Acme to set control structures 115 in the C-4 canal and 117 in the C-6 canal at 14' NGVD as required by the original 1979 permit. When this was done without operation of the Peacock Pond retention area as also contemplated and required by the 1979 Permit, the water levels caused septic tank problems to some residents in WCPPUD, leading SFWMD to issue emergency authorizations to lower the crest-settings of structures 115 and 117 to 12.5' NGVD. At those settings, water levels in WCPPUD stayed between 12' and 13' NGVD, and there have been no septic tank problems in the last two years. Specifically, measured water levels in the C-4 canal north of control structure 115 generally ranged between elevation 12' NGVD and 13' NGVD from November 2001 through
October 2003, with occasional variances above or below due to drought or rain periods.
Proposed Modification to Eliminate Use of Peacock Pond
On May 12, 2000, Acme filed an application to modify its permit. The primary purpose of this modification was to authorize alternate SWM facilities within Basin B (primarily within WCPPUD) to maintain the water quality treatment function that was assumed would be realized by Peacock Pond in the WCPPUD permit issued in 1979. Additional components of the permit modification are:
installation of a 7.8 acre flow through littoral zone within the C-2 Canal for additional cleansing of Acme Basin B water;
modification of the pump operation schedule for Basin B;
revision of surface water management design requirements for future development within Country Place to include additional lake acreage and littoral zones;
elimination of a previously permitted (but not constructed) control structure allowing discharge from Lake No. 5 to the C-
4 Canal so that water from Lake 5 continues to drain through established canals and lakes into the C-4 Canal;
modification of existing flashboard riser water control structures 115 and 117 within the C-4 and C-6 Canals to crest elevations of 12’ and 13’ NGVD, respectively, so that water will be detained upstream but water from both the eastern and western ends of the Wellington WCPPUD drain
toward and into the C-4 canal during low flow; and
an analysis of nutrient (and phosphorus) loading, removal and export from the Country Place system
During the application process, Acme submitted detailed water quality calculations analyzing and comparing the 1979 permit, based on the land uses at that time and the anticipated phosphorous loading that would be discharged from the system, and the proposed modification with current land uses and phosphorous loading now anticipated.
To support its modification application, Acme recalculated the water quality treatment currently provided by existing lakes--many of which were not planned in 1979--and other water quality treatment features in WCPPUD.
Acme's calculations assumed that all land owners of undeveloped tracts in Basin B, including land owners in WCPPUD, wishing to develop their properties in the future will have to provide for adequate water quality treatment or other acceptable alternatives, as required by SFWMD regulations in place at the time the future permit applications are filed. In order to meet those requirements, future developers can either create lakes on their properties, treat their water off-site on properties such as Peacock Pond, or use other equivalent alternatives.
In conformance with current SFWMD criteria, Acme’s application only considered and counted as water quality treatment features water bodies with an average width of at least 100' and a size of at least 0.5 acres.
SFWMD spent an enormous amount of time reviewing the data and analyses that were submitted. SFWMD then issued numerous lengthy requests for additional administrative and technical information, requiring Acme among other things to provide water level information and perform management calculations. Acme provided necessary calculations to demonstrate that flood levels within WCPPUD would not be affected by the elimination of Peacock Pond as a water quality feature.
Acme's calculations demonstrated that the water quality treatment functions currently provided by existing lakes meeting SFWMD's dimensional criteria and by on-site swales, together with the 7.8-acre off-site littoral shelf to be constructed in canal C-2, would be sufficient to replace the water quality treatment functions assumed to be provided by Peacock Pond under the 1979 permit.
SFWMD issued a Staff Report on April 29, 2003, recommending approval of the application to modify the SWM permit. SFWMD found that Acme had provided reasonable assurances by Acme that the applicable permit criteria would be
met. On May 15, 2003, the SFWMD Governing Board approved the Staff Report to issue a modification to SWM Permit No. 50-00548- S, Application No. 000512-12.
Control Elevations and Pump Operation Schedules
The proposed permit modification states that there will be a change in the permitted water control elevations and pump operation schedule within Basin B. However, as set out in Finding 17, supra, in actual practice, water elevations throughout Basin B have been maintained at the levels permitted for WCPPUD under the 1979 permit for at least the last ten years, which include the time period after the Peacock Pond pumped retention area stopped being operated as required under the 1979 permit. The proposed modifications essentially would continue the historical operation of the Acme Basin B system during this time period. In essence, the changes in Basin B outside WCPPUD will simply conform the permit conditions to actual conditions for at least the last ten years. For that reason, SFWMD and Acme has referred to modification as being only "on paper."
As reflected in Finding 23(e), supra, water control structures 115 and 117 would be modified in association with this permit modification so that structure 115 (located in the C-4 canal adjacent to Peacock Pond) will have a weir crest elevation of 12' NGVD and structure 117 (located adjacent to the
C-6 canal) will have a weir crest elevation of 13' NGVD. As a result, when the water level in WCPPUD exceeds 12' NGVD, it would begin to "bleed down" out of structure 115 in the C-4 canal. If the water level in WCPPUD continued to rise and reached 13' NGVD, it would begin to "bleed down" out of the 117 structure in the C-6 canal as well.
Under the proposed permit modification, the pump operation schedule would be revised so that no pumping would occur until Basin B stages reached 13' NGVD. Then, the pump rate will average 30,000 gpm, which equates to a "bleed down" discharge of 20 percent of the one-inch detention above 12' NGVD per day. When the stage has been brought down to 12' NGVD, all pumping would cease. During significant storm events, when the internal stages exceed 13' NGVD, the previously permitted peak discharge rate of 220,000 gpm will be maintained.
If the pumps are operated as proposed in this modification, the system will be able to take full advantage of its nutrient removal capacity. At the same time, water levels will be maintained within the ranges of historical operation over at least the last ten years. The only difference is that, except for major storm events, water levels will be allowed to "bleed down" at a slower rate.
Notwithstanding these facts, Petitioners believe that control elevations in WCPPUD have always been higher than in
Basin B, and are concerned that the proposed "on paper" modification is in the nature of a "smoke and mirrors" trick. Petitioners are concerned the proposed modifications will cause additional water to be detained in WCPPUD to the detriment of the equine industry there. But the evidence indicated that the their concerns are not well-taken.
Under the proposed modification, there will be one inch of detention over the entire Basin B water management system between the elevations of 12' NGVD and 13' NGVD. This is the same range of elevations established for WCPPUD in the 1979 SWM permit. The calculated detention volume accounts for the volume of water which is physically accommodated in the system between 12' NGVD and 13' NGVD. There is no additional detention created in the WCPPUD system through the proposed changes. The proposed Basin B pump schedule will result in the same range of water table fluctuation as required in the 1979 SWM permit. As Petitioners' witness, Mr. Straub, testified, the system has worked well as operated for the last three years. No significant changes are to be expected as a result of the proposed pump operation schedule changes designed to achieve greater water quality treatment benefits.
In combination, the modification of the pump operation schedule for Basin B and the revisions to the WCPPUD system are expected to result in an improvement in flood control with lower
flood stages within WCPPUD through a more efficient water management system.
Acme has demonstrated that the proposed modifications will not result in a change in actual water control elevations on Petitioners' properties; will not cause water to back up and cause flooding or septic tank problems within WCPPUD; and will comply with Florida Administrative Code Rule 40E-4.301(1)(a), (b), and (c.)
The undisputed expert testimony was that Acme gave reasonable assurances that the proposed permit modification will not "lower existing water table elevations." (Emphasis added.) Fla. Admin. Code R. 40E-41.363(4).
Equivalent Water Quality Treatment Provided
Acme provided calculations comparing the treatment which was assumed to take place within the originally permitted surface water management system of WCPPUD (which included Peacock Pond), the treatment which is currently being provided by the existing system, and the treatment that will be provided under various assumed future scenarios. Acme demonstrated that there will be an equivalent amount of water quality treatment even though the use of Peacock Pond as a water quality retention area is being eliminated. Petitioner did not provide any contrary evidence to show that the removal of Peacock Pond reduced water quality treatment in the system. As a result,
reasonable assurances were given that there will be no adverse effect on the quality of receiving waters as a result of this proposed modification.
Additional Wet Detention Areas Now Exist
Although the 1979 permit required only 12 acres of wet retention ponds, analysis of aerial photographs and existing permits issued after 1979 indicates that 54.4 acres of wet detention lakes meeting current regulatory criteria now exist in WCPPUD. Another 33 acres of existing wet retention areas (including canals) are present but do not meet the minimum width criteria required for wet detention ponds. Approximately another 4 acres meet the dimensional requirements but are not legally encumbered for use by Acme for water quality purposes. For example, Lakes 6 and 8 meet the dimensional criteria but are not platted as water management areas or encumbered by suitable drainage easement. A similar situation exists with Lake 9, which has been assumed to provide wet detention treatment over only 15.41 acres since the northern 2.25 acres of the 17.66-acre lake are outside the platted water management area's footprint.
If all lakes, ponds, and canals within WCPPUD were counted for water quality purposes, Acme calculated that there would be enough capacity to treat approximately one inch of runoff from WCPPUD. Not counting the water bodies not meeting dimensional requirements or not legally encumbered, but assuming
that future development within WCPPUD will have 13% water bodies qualifying for use as wet detention areas under current criteria, Acme calculated that there would be capacity to treat one inch runoff from current and future development within WCPPUD. (Instead of 13 percent qualifying wet detention areas, alternative equivalent water quality treatment also could be used to meet applicable water quality treatment criteria.)
Planted Filter Marsh Located in C-2 Canal Provides Additional Water Quality Treatment
Phosphorus loading can be described as the pounds of phosphorus which are being discharged to a water body through storm water runoff. In WCPPUD today, phosphorous loading is higher than originally anticipated and calculated when the 1979 Permit was issued due to differences in the way the land has been developed over the last 20 years. The main difference is more equestrian activity and its higher phosphorus loading than anticipated in 1979. Acme submitted detailed phosphorus loading information which is included in Exhibits 7A through 7E to the Staff Report (SFWMD Exhibit 5), comparing what the original permit anticipated to what is happening today, and what would happen with the modified system. The detailed information is summarized on Exhibit 8 to the Staff Report.
To address phosphorus loading, the proposed project includes construction of a 7.8-acre filter marsh within a
portion of the Acme C-2 Canal right-of-way located within Basin B about a half mile west of WCPPUD. The project will extend from the intersection of the C-2 and C-23A canals southwards approximately 6,800'. The filter marsh will treat water flowing south through the C-2 canal prior to reaching the Acme pump stations discharging into the Refuge.
The existing Acme C-2 canal will be expanded to a width of approximately 80' to 130' and will incorporate a meandering 40' to 60' wide constructed and planted littoral shelf at elevation 10.0' NGVD. Adjacent to the proposed littoral zone, a 25' wide section of the canal will be excavated to an elevation of approximately 6.0' NGVD. This deeper section is proposed to prevent any reduction in hydraulic capacity of the existing C-2 Canal.
The 7.8-acre area will be planted with native wetland vegetation on three centers. It is anticipated that the planted vegetation will meet or exceed the eighty percent coverage requirement within two years; however, additional plants will be installed if the area fails to meet such expectations.
Monitoring will occur on a monthly basis until the filter marsh achieves a 50 percent areal coverage of desirable planted and recruited wetland vegetation. Upon attainment of the 50 percent coverage criterion, the monitoring frequency will be reduced to four times per year for a period of three years.
Subsequent maintenance and monitoring events will occur semi- annually. Should exotic infestation occur, herbicide and/or hand clearing will be utilized to bring the filter marsh into compliance with desired plant specie densities. Special Condition No. 12 of the Staff Report (SFWMD Exhibit 5) requires that the Acme adhere to the filter marsh maintenance plan. The proposed littoral zone construction is expected to be initiated within six months of permit issuance and completed within six months of commencement.
The pollutant loading/removal spreadsheets provide an estimate that the marsh will result in the annual removal of 33 pounds of total phosphorus. At the same time, the proposed filter marsh will add the equivalent of one-half inch of water quality treatment benefits within the entirety of Basin B. As a result, with the proposed filter marsh, Acme gave reasonable assurances that the proposed permit modification would provide "an additional fifty (50) percent retention/detention water quality treatment addition to the water quality treatment volumes required in section 5.2.1. of the Basis of Review [for projects within a Water Protection Area or Area Basin]." Fla. Admin. Code R. 40E-41.363(5).
Approximately half of the proposed filter marsh will extend north of the east/west C-24 Canal, and half will extend south of it. The northern half will treat water from an area of
relatively intense equestrian use just west of WCPPUD; the southern half will continue to treat water flowing through the northern half of the filter marsh. However, the southern half also will treat some water from the C-4 and C-6 canals in WCPPUD, which flows south to the C-24 and then west to the C-2. Exhibit 9B of the Staff Report (SFWMD Exhibit 5) delineates the assumed contributing area of 960 acres.
BMPs Provide Improvements in Water Quality
Best Management practices (BMPs) are water quality treatment operational practices to prevent pollutants from ultimately entering the receiving water body. BMPs are also often referred to as source controls. Examples of BMPs include street-sweeping and cleaning out storm gutters to control pollutants at their source. BMPs are commonly considered in ERP permitting.
The Village of Wellington has mandated a BMP program in Basin B, including: an ordinance dealing with phosphorus and water quality improvement; an ordinance regulating the application of fertilizer, requiring no more than two percent phosphorus content; and an equestrian BMP requiring equestrian residuals, commonly known as manure, be collected and contained in concrete covered bins. Historically, horse manure was stockpiled in the open and exposed to rainfall. Stormwater runoff from the stockpiled manure often flowed directly into the
Acme canals. Stormwater runoff from equestrian residuals has been a major contributing factor to the amount of phosphorus being discharged to the Everglades from Basin B. The Village of Wellington also is implementing BMPs for its own canal maintenance and for cleaning phosphorous-laden sediments from its canals.
The calculations provided to SFWMD by Acme concerning BMPs do not assume an initial 100-percent compliance. Initially, a 20-percent compliance was assumed because the ordinances are fairly new.
These BMPs were not in place when the 1979 permit was issued. Under the current application, it is expected that the BMPs throughout Basin B will significantly reduce the amount of phosphorus ultimately discharged through the two Acme pump stations to the Refuge.
Although there is an increase in phosphorus loading from that anticipated in 1979, the BMPs, filter marsh, amendment to the pump operation schedule, comprehensive water quality monitoring plan, and other items in the modification offset the increase. (The modifications in the proposed permit are not designed to address the overall Basin B phosphorus problems.)
Comprehensive Water Quality Monitoring Program
SFWMD and the Village of Wellington have implemented a comprehensive water quality monitoring program with Basin B.
This program includes existing and proposed sampling points within WCPPUD shown on Exhibits 2 and 9B of the Staff Report (SFWMD Exhibit 5). This permit modification requires that Acme continue this monitoring program as specified in Special Condition No. 11 to the Staff Report.
Elimination of Existing Control Structure
As stated in Finding 19, supra, a 1989 modification to the 1979 authorized construction and operation of a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal, which was never built. Instead, as shown on Exhibit 2 of the Staff Report, the existing SWM system for Equestrian Estates discharges to the C-4 Canal well to the north of the authorized control structure via a 100' wide canal.
The proposed permit modification will eliminate the authorization for the Equestrian Estates control structure which was never constructed. This revision is necessary to ensure that discharge from the development will continue to occur upstream of Structure 115, as it does today, and that the on- site detention facilities within Equestrian Estates will function as modeled in the water quality analysis.
Polo's Pending Application for Peacock Pond
Polo has pending a separate application to SFWMD (Application No. 020215-10) requesting authorization for
development of Peacock Pond as a polo field. Polo’s proposed water quality feature for its Peacock Pond polo fields development includes a lake on the north end of Peacock Pond. It appears that the lake would utilize lakes/canals 12 and 13, which are currently located at the north end and northeast
corner of Peacock Pond, essentially enlarging those lakes/canals to the south and west into Peacock Pond.
Polo's application is currently incomplete and fails to address a number of significant water resource issues. SFWMD mailed an initial Request for Additional Information (RAI) to Polo on March 15, 2002. Responses were due within thirty days. As of the date of the final hearing in this case, no response to the initial RAI had been submitted.
Notwithstanding its pending application, Polo professes to believe that its undeveloped properties in WCPPUD are "vested," so that Polo should not be required to provide water quality treatment when developing its properties in the future. But the 1979 permit stated that it only permitted construction in certain parts of WCPPUD and that individual permit modifications would be required for the future development of additional phases. (SFWMD Exhibit 2 at p. 1; special conditions.) All "grand fathered" development already has taken place. No evidence or convincing legal argument was presented by Petitioners for the proposition that land owners
seeking to develop their properties in Wellington WCPPUD now or in the future should be "vested" and thus subject to different water management regulations than other land owners seeking to develop their properties in Acme Basin B.
SFWMD's Proposed Corrections to Staff Report
At the Final Hearing, SFWMD suggested that two corrections be made to the Staff Report. The first would add "Section No. 20" on page 1 of the Staff Report (SFWMD Exhibit 5) to clarify the property is actually located in sections 20 and
This type of change would be made administratively even without this proceeding.
The other correction is proposed on page 4 of the Staff Report (SFWMD Exhibit 5), pertaining to the description of the water elevation within Basin B and Country Place, as
follows:
The water elevation within Basin B and Country Place
was originally permitted with a wet season control elevation of 12.0' and a dry season control of 13.0' NGVD. The minimum road and finish floor elevations were established at elevation 16.0' and 17.0 NGVD, respectively. The water elevation within Basin B was permitted in 1978 with a schedule stage of 13' NGVD in the wet season and 13' NGVD in the dry season; however, the system has historically been operated with a control elevation of 12' NGVD in the wet season and 13' in the dry season. WCPPUD was originally permitted with a wet season control elevation of 12' NGVD and a dry season control elevation of 13' NGVD. The Country Place pump station discharging into Peacock Pond was to begin operation when water elevations reached 13' NGVD and discontinue when the system was drawn down to elevation 12' NGVD. The operational elevations authorized in this staff report are consistent with those
authorized in 1979 for Country Place. The 1978 permit also established a minimum road grade elevation of 16' NGVD and a finished floor elevation of 17' NGVD for Basin B. The 1979 permit for Country Place established the same minimum road grade and finished floor elevations.
This correction accurately describes the 1978 permit for Basin B; it is not a substantive change.
These and other possible changes to the Staff Report were drafted shortly before the final hearing in the form of an "Addendum to Staff Report." Petitioners contended that this denied them due process. However, this Addendum (which was not introduced into evidence) was presented to propose corrections to minor errors in the original Staff Report and to suggest appropriate ways to address issues raised by Petitioners during prehearing procedures in this case in order to help clarify the intention of the Staff Report for Petitioners' benefit. SFWMD offered to withdraw the latter Addendum proposals if Petitioners so wished; Petitioners declined to request that these proposals be withdrawn, but none are considered to be necessary.
Other Contentions Raised By Petitioners
Alleged Elimination of Petitioners' Water Treatment Facilities
Petitioners contended in their Second Amended Petition that the modification will cause "33 acres of previously permitted and constructed water management facilities to no longer be considered toward meeting water quality treatment."
But the 33 acres referenced by the Petitioners were never counted for water quality treatment in the previous permits. Additionally, as discussed above, they do not meet the minimal dimensional criteria or have not been encumbered for water quality purposes. See Finding 41, supra. The only surface water management facility which has a change in its permitted status for water quality treatment is Peacock Pond.
Future Development is Not Precluded from Proposing Alternative Water Quality Treatment
Petitioners expressed a concern that the proposed permit modification would bind future development to the Acme's design assumptions--specifically, the assumption that, in order to meet SFWMD's criteria for new development, future development projects would include 13 percent lakes. This concern seems to spring primarily from the following statement on page 3 of 21 of the Staff Report (SFWMD Exhibit 5): "This permit modification requires that applicants adhere to the stated surface water management system assumptions for all future development."
Reading the Staff Report as a whole, it was reasonably clear that Acme's assumption was made only for purposes of its permit modification application and would not bind future developers in WCPPUD. Rather, future applicants may propose any alternative methods that comply with Chapter 40E-4, Florida Administrative Code, and the BOR to demonstrate compliance with
water quality requirements. For example, the Staff Report states on page 13:
Future Country Place applicants are not precluded from proposing alternative means of treatment which can be demonstrated to provide an equivalent level of treatment. Further, the assumptions do not preclude the SFWMD from requiring additional treatment measures as necessary from an applicant to provide reasonable assurance that future projects will not cause or contribute to existing water quality problems in Basin B.
The testimony of SFWMD witnesses confirmed this reading of the Staff Report. There is no need to further modify the Staff Report to allay Petitioners' expressed concern.
Canals/Lakes 12 and/or 13 Not Affected
Petitioners' Second Amended Petition questioned whether Acme's canals/lakes 12 and 13, which border Peacock Pond on the north and in the northeast corner, are properly located within Acme's easements. But Acme's application proposes no modifications to those canals/lakes.
Not only are canals/lakes 12 and 13 not the subject of this permit modification, Petitioners introduced no competent, substantial evidence demonstrating improper placement of those conveyance features.
In an abundance of caution, SFWMD suggested adding the following Special Condition Number 14 to address this issue:
If a final determination is made by a court of competent jurisdiction that Acme does not own, have an easement or otherwise have the right to utilize the area where canal/lake Number 12 and/or canal/lake Number 13 is
located, then within 30 days of such determination, Acme shall file an application with the SFWMD to move the canal/lake Number 12 and or canal/lake Number 13 to an area which is determined to be owned by Acme or over which Acme has an easement, or modify the surface water management system to discontinue use of canal/lake Number 12 and or canal/lake Number 13.
Inclusion of this language would confirm that, if a court makes a final determination that Acme does not have the right or access to utilize Canals/Lakes Number 12 and/or 13, Acme would be required to modify the permit. While adding the suggested language to the Staff Report is appropriate, it is not necessary; reasonable assurances have been provided without any additional language that the permit criteria have been satisfied.
If canal/lakes 12 and 13 should ever become unusable, thus preventing a discharge of the eastern half of WCPPUD into the C-4 canal, the drainage system could be split so that the western half discharges into the C-4 canal and the eastern half into the C-6 canal. In that case, a minor modification would be required to lower the weir at structure 117 to 12’ NGVD and the permit is modified. Mr. Higgins performed calculations to demonstrate that such a minor modification would be permittable under applicable criteria.4
Wetlands in Pod F Not Adversely Affected
The Staff Report includes reference to wetlands located in the southeast corner of Pod F of WCPPUD. (Pod F
itself is in the southeast corner of Section 20.) Petitioners seemed to take issue with the Staff Report's description of these wetlands. They also disputed whether Acme provided reasonable assurance that these wetlands would not be adversely affected by the proposed modifications. Specifically, Polo expressed concern that the proposed modifications would undermine a plan it has to restore wetlands in Pod F for use as mitigation for an after-the-fact permit to be issued to resolve a SFWMD cease and desist order imposed on Polo for activities in an adjacent polo field, and perhaps also as mitigation for wetland impacts by Polo and other future developers in the area. In taking these positions, Petitioners criticized SFWMD for not presenting expert testimony from a biologist.
The Staff Report states that "the 3.74-acres of cypress wetland contained within Pod F" are the only other wetlands in WCPPUD besides Peacock Pond. These wetlands were described as being "in poor biological condition."
Petitioners argued that the testimony of their expert supported a finding that the wetlands in Pod F actually are approximately 25 acres in size. However, her actual testimony was that her proposed wetlands restoration project was 25 acres in size. Part of her proposed restoration project includes the "vertical relocation" of higher ground now infested with melaleuca and other nuisance and exotic species. In addition,
she admitted that she had not delineated wetlands in Pod F using the methodology adopted for that purpose by the State of Florida; instead, she used methodology adopted by the United States Army Corps of Engineers was used. Not only are the two methodologies different, the Army Corps methodology includes wetlands not included under the State of Florida methodology.
Finally, Petitioners' expert admitted that less than 4 acres of the 25 acres included in her project area consisted of "cypress heads." Taken as a whole, the evidence did not demonstrate a need to revise the Staff Report's description of the size of the wetlands in Pod F.
As for the Staff Report's description of the Pod F wetlands' "poor biological condition," this is consistent with the testimony of Petitioners' expert. She testified that the wetlands' hydrology was deficient, especially on the northern half of the restoration project area, and that the tract is "highly infested with exotic vegetation," leading to the need for restoration. The hydrology is better on the southern half of the restoration project area, where the cypress trees are healthy; but the cypress trees on the northern half of the tract are under stress, with lots of old world climbing vines on them and other infestation of exotic vegetation, including melaleuca. On site visits, the expert saw "wading birds, snakes, signs of raccoon [and n]umerous bird species." No endangered or
threatened species were said to be using the tract at this time. One purpose of the restoration project would be to create better wildlife habitat.
Petitioners' expert testified that if water levels were lowered in the proposed restoration project area, there could be an adverse impact on existing and planned wetlands. However, Petitioners' expert did not have evidence or information indicating historic or current water levels. Petitioners' expert also did not know whether the permit modification will lower or have any affect on the water levels in that area. Petitioners introduced neither competent evidence of current groundwater levels under the proposed wetlands mitigation project, nor competent evidence as to how the permit modification might change those groundwater levels.
Acme and SFWMD presented evidence that the water levels in the C-4 and C-23 canals, directly adjacent to Pod F, will not be changed significantly as a result of the permit modification; that the proposed permit modification will have no effect on the groundwater levels in this wetland area; and that, as a result, no wetland impacts will occur from the permit modifications. Petitioners did not rebut the Respondents' evidence. As a result, Acme has demonstrated that not only groundwater and surface water flows and levels but also the value of wetland functions in Pod F will not be adversely
impacted, as required by Rule 40E-4.301(d) and (g), Florida Administrative Code.
The evidence was that SFWMD biologists visited the Pod F wetlands and prepared a report which formed the basis of statements in the Staff Report about the absence of wetland impacts. Given the finding that groundwater levels in the Pod F will not change, the testimony of expert biologists was not necessary.
Assumed Commercial Acreage
Through the testimony of Michael Nelson, Petitioners questioned a purported statement in the Staff Report that there are 24.4 acres of commercial acreage in WCPPUD. According to Mr. Nelson, there actually are only five acres of commercially zoned property in the PUD. Mr. Nelson stated that this, along with other alleged errors, undermine his confidence in SFWMD's entire evaluation of the proposed permit modification.
In fact, the Staff Report, at page 8, states that "the original permit application (in 1979) included only two land uses: 935.6 acres of single family use . . . and 24.4 acres of commercial area." There was no statement that 24.4 acres is zoned commercial today.
Past Violations
Petitioners also assert that the proposed permit modification should be denied because Acme has not strictly
abided by applicable permits. But Acme's most significant past violation was the failure to operate Peacock Pond as required by the 1979 Permit. As reflected in Findings 21 and 23, supra, the primary purpose of this proposed modification is to resolve the enforcement proceedings that arose out of the Peacock Pond violation.
Acme also has been one of thousands of SFWMD permit holders who have not certified construction of their systems in conformance with the applicable permits, which is required to transfer the permit into operational status. For many years, SFWMD did not monitor permits for certification and did not enforce failure to certify permits. When monitoring and enforcement was initiated in 1995, it was found that over 12,000 permits were in violation for failure to submit the required certifications. SFWMD prioritized the missing certifications and began methodical follow-up. When SFWMD raised the issue with Acme, Acme responded, and the outstanding violations are being resolved. SFWMD saw no need to initiate formal enforcement proceedings and has been treating the outstanding violations as a "non-compliance" issue since it is a paperwork problem, not an environmental resource problem.
At this time, the modifications to structures 115 and
117 in accordance with the several emergency authorizations to address septic tank problems have been certified. However, as
indicated, the 1979 Permit itself cannot be certified so long as the Peacock Pond pumped retention area is not in place and operational.
It is found that Acme has sufficient financial, legal, and administrative capabilities to ensure that water management modifications will be undertaken in accordance with the terms and conditions of the modified permit. (Since Acme is now a dependent special district of the Village of Wellington, the Village of Wellington actually will be responsible for installation, operation, and maintenance of these structures.) Notwithstanding the past violations, reasonable assurances have been given that Acme will comply with the terms of its proposed permit modification.
Propriety of Petitioners’ Purpose
Acme has raised the issue whether Petitioners participated in this proceeding for an "improper purpose," i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity."
§ 120.595(1)(e)1, Fla. Stat. (2003). But it is found that, under the totality of circumstances, Petitioners' participation in this proceeding was not for an improper purpose, as defined by statute.
Petitioners' participation in this proceeding has indeed needlessly increased Acme's cost of obtaining SFWMD's permit approval; but the evidence did not prove that this was Petitioners' primary purpose.
It also is clear that Petitioners attempted to delay this proceeding through repeated requests for continuances (and other procedural and evidentiary objections) and that, while they usually based their requests for continuances in part on the alleged need for more time for more discovery, they failed to pick up voluminous copies of requested discovery documents and complained about how much money they had already spent on discovery. Nonetheless, it is found that Acme did not prove that Petitioners' primary purpose for participating in this proceeding was to delay the proceeding.
It seems reasonably clear that, had Petitioners retained a competent expert engineer to evaluate its case, the expert probably would have advised Petitioners that they would not be able to successfully challenge SFWMD's proposed agency action. For that and other reasons, a reasonable person would not have raised and pursued some of the issues raised by Petitioners in this proceeding. But it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose.
CONCLUSIONS OF LAW
Burdens of Proof and Persuasion
A DOAH hearing held pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003), is not an administrative review of prior agency final action. This administrative hearing is a de novo proceeding designed to formulate final agency action, and the parties are allowed to present additional evidence on relevant matters not previously included in the application or in the notice of intent to issue or deny the permit. Hamilton County Commissioners v. State, 587 So. 2d 1378, 1387-88 (Fla. 1st DCA 1991); Dept. of Transportation v. J.W.C., Inc., 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981);
§ 120.57(1)(k), Fla. Stat.
The burden of proof in the proceeding is on the party asserting the affirmative in the proceeding, here Acme. Dept. of Transportation v. J.W.C., Co., 396 So. 2d at 787. If a regulatory agency gives notice of intent to grant a permit application, the applicant has the initial burden of going forward with the presentation of a prima facie case of the applicant's entitlement to a permit. In the context of this proceeding, Acme had the initial burden of showing that it provided reasonable assurance that its proposed permit modification is consistent with the applicable statutes and rules.
Once the applicant has made a prima facie case that the proposed permit should be issued, Petitioners were required rebut that prima facie case and support the allegations of its Second Amended Petition challenging the proposed permit. Id. at 789. Unless Petitioners presented "contrary evidence of equivalent equality" to the evidence presented by Acme and SFWMD, the permit must be approved. Id. at 789-790. See also Ward v. Okaloosa County, 11 F.A.L.R. 217, 236 (DER June 29, 1989).
Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. Chipola Basin Protective Group Inc. v. Dept. of Environmental Reg., 11 F.A.L.R. 467 (DER Dec. 29, 1988).
The standard for an applicant's burden of proof is one of reasonable assurances, not absolute guarantees, that the applicable conditions for the issuance of a permit have been satisfied. ManaSota-88 Inc. v. Agrico Chemicals Co. and Dept. of Environmental Reg., 12 F.A.L.R. 1319, 1325 (DER Feb. 19, 1990).
"Reasonable assurance" contemplates "a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). See also Hamilton County Board of
County Commissioners v. Dept. of Environmental Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991).
The issuance of a permit must be based solely on compliance with applicable permit criteria. Council of Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983).
To meet their respective burdens of proof, the parties to this administrative proceeding must present a preponderance of competent and substantial evidence. See §§ 120.57(1)(j) and 120.57(1)(l), Fla. Stat.; Gould v. Division of Land Sales, 477 So. 2d 612 (Fla. 1st DCA 1985). A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indemnity Co. v. Perry, 5 So. 2d 862 (Fla. 1942). "Competent" evidence must be relevant, material, and otherwise fit for the purpose for which it is offered. Gainesville Bonded
Warehouse v. Carter, 123 So. 2d 336 (Fla. 1960); Duval Utility Co. v. FPSC, 380 So. 2d 1028 (Fla. 1980). "Substantial" evidence must be sufficient to allow a reasonable mind to accept the evidence as adequate to support a conclusion. See Degroot
v. Sheffield, 95 So. 2d 912 (Fla. 1957); Agrico Chemical Co. v. Dept. of Environmental Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978).
SFWMD’s ERP Permitting Authority
The SFWMD is a water management district with the power and duty to exercise regulatory jurisdiction over the
administration and enforcement of ERP criteria is pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, and Sections 373.413, 373.414, and 373.416, Florida Statutes. (2003).
Sections 373.413 and 373.416, Florida Statutes, authorize SFWMD to require ERP permits and impose such reasonable conditions as are necessary to ensure that the construction, operation or maintenance of any stormwater management system will comply with Part IV, Chapter 373, Florida Statutes, and the rules promulgated thereunder, including the "Basis of Review for Environmental Resource Permit Applications Within The South Florida Water Management District, April 2003," (BOR), adopted by reference in Rule 40E-4.091(1), Florida Administrative Code, and will not be harmful to the water resources of SFWMD.
An agency's interpretation of its own statutes and rules is entitled to great deference, and shall not be overturned unless clearly erroneous or otherwise unsupported by substantial, competent evidence. See Florida Department of Environmental Protection v. Goldring, 477 So. 2d 532, 534 (Fla. 1st DCA 1986); Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So. 2d 987 (Fla. 1985).
ERP Criteria Applicable to the Proposed Project
The primary conditions for issuance of an ERP are contained in Rules 40E-4.301 and 40E-4.302, Florida Administrative Code. These conditions are further explained in the BOR.
SFWMD's interpretation and application of the ERP criteria in this case should be accorded great deference. Goldring, 477 So. 2d at 534. These interpretations of statutes by agencies charged with their enforcement do not have to be the only ones, or even the most desirable interpretations. It is enough if the agency interpretations are permissible ones. Stuart Yacht Club Marina, Inc. v. Department of Natural Resources, 625 So. 2d 1263, 1267 (Fla. 4th DCA 1993); Little Munyon Island v. Department of Environmental Regulation, 492 So. 2d 735, 737 (Fla. 1st DCA 1986).
The Second Amended Petition challenges Acme's compliance with the conditions for issuance set out in Florida Administrative Code Rule 40E-4.301(1)(a)-(e), (g), (j), and (k). At the final hearing, Acme's and SFWMD's expert witnesses testified that the necessary reasonable assurances have been provided. No competent evidence of equivalent quality was provided by Petitioners to refute that reasonable assurances have been provided. Based on the evidence and findings, the
conditions for issuance have been met, and the proposed permit modification should be issued.
Acme's Request for Sanctions
As indicated in the Preliminary Statement, Acme moved for attorney's fees and costs against Petitioners under Sections 120.569(2)(e) and 120.595(1), Florida Statutes (2003).
Jurisdiction will be reserved to determine the requests under Section 120.569(2)(e) because DOAH has jurisdiction to enter the final order under that statute. See Procacci Commercial Realty, Inc. v. Dept. of Health and Rehab.
Services, 690 So. 2d 603, 606 (Fla. 1st DCA 1997); Dept. of Health and Rehab. Services v. S.G., 613 So. 2d 1380, 1384-85 (Fla. 1st DCA 1993). Under Section 120.595(1), the procedures (and, to some extent, substantive law) are different.
Section 120.595(1) provides in pertinent part:
The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.
The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to
s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as
defined by this subsection and s. 120.569(2)(e). In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.
For the purpose of this subsection:
"Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.
(Emphasis added.)
It is concluded that Petitioners are "nonprevailing adverse" parties, notwithstanding that SFWMD has proposed minor changes to the Staff Report.
The "definition" of improper purpose in Section 120.569(2)(e) is not identical to the definition in Section 120.595(1)(e)1. Section 120.569(2)(e) provides that signatures
on pleadings, motions, or other papers certify that the signatory has read the document and that "based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation."
Construing the definition in Section 120.595(1)(e)1 in pari materia with the "definition" in Section 120.569(2)(e), it is concluded that Section 120.595(1) only references the examples of improper purposes cited in Section 120.569(2)(e), but that participation in a proceeding is for an improper purpose under Section 120.595(1) only if it is "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." (If such a limitation on the definition is not part of Section 120.569(2)(e), Section 120.595(1)(a) provides that its provisions are "supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.")
Case law holds that an objective standard is used to determine improper purpose for the purpose of imposing sanctions on a party or attorney under Section 120.569(2)(e) and predecessor statutes. As stated in Friends of Nassau County,
Inc. v. Nassau County, 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000):
In the same vein, we stated in Procacci Commercial Realty, Inc. v. Department of Health and Rehabilitative Services, 690 So.2d 603 (Fla. 1st DCA 1997): The use of an objective standard creates a requirement to make reasonable inquiry regarding pertinent facts and applicable law. In the absence of "direct evidence of the party's and counsel's state of mind, we must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party's or counsel's shoes would have prosecuted the claim."
Id. at 608 n. 9 (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1515 (11th Cir.1991)). See In re Sargent, 136 F.3d 349, 352 (4th Cir.1998) ("Put differently a legal position violates Rule 11 if it 'has "absolutely no chance of success under the existing precedent." ') Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991)(quoting Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 988 (4th Cir.1987))."[)]
* * *
Whether [predecessor to Section 120.595(1)] section 120.57(1)(b)5., Florida Statutes (1995), authorizes sanctions for an initial petition in an environmental case turns
. . . on the question whether the signer could reasonably have concluded that a justiciable controversy existed under pertinent statutes and regulations. If, after reasonable inquiry, a person who reads, then signs, a pleading had "reasonably clear legal justification" to proceed, sanctions are inappropriate.
Procacci, 690 So.2d at 608 n. 9; Mercedes,
560 So.2d at 278.
Although there is no appellate decision explicitly extending the objective standard to Section 120.595(1), there does not appear to be any reason why, absent the rebuttable presumption, the
objective standard should not be used to determine whether Petitioner's participation in this proceeding was for an improper purpose. See Friends Of Nassau County, Inc., v. Fisher Development Co., et al., Case Nos. 96-3826, etc., 1998 WL 929876 (Fla. Div. Admin. Hrgs. Oct. 13, 1998); Amscot Insurance, Inc., et al. v. Dept. of Ins., Case No. 98-1974F, 1998 WL 866225 (Fla. Div. Admin. Hrgs. July 14, 1998).
In another appellate decision, decided under a predecessor to Section 120.595(1) before the objective standard was enunciated for cases under Section 120.569(2)(e) and its predecessor statutes, the court in Burke v. Harbor Estates Ass'n, 591 So. 2d 1034, 1036-1037 (Fla. 1st DCA 1991), held:
The statute is intended to shift the cost of participation in a Section 120.57(1) proceeding to the nonprevailing party if the nonprevailing party participated in the proceeding for an improper purpose. A party participates in the proceeding for an improper purpose if the party's primary intent in participating is any of four reasons, viz: to harass, to cause unnecessary delay, for any frivolous purpose, [FN1] or to needlessly increase the prevailing party's cost of securing a license or securing agency approval of an activity.
Whether a party intended to participate in a Section 120.57(1) proceeding for an improper purpose is an issue of fact. See Howard Johnson Company v. Kilpatrick, 501 So.2d 59,
61 (Fla. 1st DCA 1987) (existence of discriminatory intent is a factual issue); School Board of Leon County v. Hargis, 400 So.2d 103, 107 (Fla. 1st DCA 1981)
(questions of credibility, motivation, and purpose are ordinarily questions of fact). The absence of direct evidence of a party's intent does not convert the issue to a question of law. Indeed, direct evidence of intent may seldom be available. In determining a party's intent, the finder of fact is entitled to rely upon permissible inferences from all the facts and circumstances of the case and the proceedings before him.
FN1. A frivolous purpose is one which is of little significance or importance in the context of the goal of administrative proceedings. Mercedes Lighting & Electrical Supply, Inc. v. Department of General Services, 560 So.2d 272, 278 (Fla. 1st DCA
1990).
Burke also is of interest because it involves facts similar in some respects to the facts of this case, particularly with respect to Mr. Straub's attempted representation of Polo. In other respects, and especially as to POA, the facts of this case are different. According to Burke, the hearing officer found:
Petitioner . . . submitted no evidence to show facts necessary to sustain the pleadings in the Petition. Petitioner
offered no expert testimony in support of the pleadings in the Petition. The
testimony of fact witnesses called by Petitioner was not material to Petitioner's claims. . . .
Petitioner consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioner repeatedly attempted to establish violations of laws not relevant to the proceeding. . . . Petitioner attempted to
establish issues by arguing with witnesses during direct and cross-examination, and by repeatedly making unsworn ore tenus representations of fact.
There was a complete absence of justiciable issue of either law or fact in this proceeding because petitioner failed to show facts necessary to sustain the pleadings. Petitioner presented no evidence refuting Respondent, Burke's, showing that the modifications required by DER were adequate to assure water quality and the public health, safety, or welfare, or the property of others. Evidence presented by Petitioner was not material to the issue of whether the modifications required by DER were adequate for the purposes of the law applicable to this proceeding. Therefore, Petitioner participated in this proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to needlessly increase the cost of licensing or approval of the proposed activity.
Id. at 1035-1036.
(For reasons unknown, there are minor discrepancies between the court's version of the findings and those appearing at Harbor Estates Associates, Inc. v. E. Burke, et al., Case No. 89-2741, 1990 WL 749394 (Fla. Div. Admin. Hrgs. April 4, 1990), and at DOAH's Internet website, Recommended Order, DOAH Case No.
89-2741, entered April 4, 1990.) In Burke, the Department of Environmental Regulation (predecessor to DEP) accepted the hearing officer's findings as to the petitioner's conduct but reversed the hearing officer's award, holding "that the conduct described in the recommended order cannot, as a matter of law, evince an improper purpose as defined in Section 120.59(6),
Florida Statutes." Burke 591 So. 2d at 1037. The court reversed, holding:
FN2. Despite acceptance of factual findings below, the final order characterizes the conduct of Harbor Estates' representative as mere "incompetent representation." We reject that characterization as not consistent with the hearing officer's findings and, therefore, do not here decide whether incompetent representation alone permits a finding of improper purpose.
* * *
We reject appellees' argument that a qualified lay representative in a Section
120.57 proceeding should be held to a lesser standard of conduct, as distinguished from legal competence, than a licensed attorney. Section 120.62(2), Florida Statutes, permitting qualified lay representatives to represent parties in administrative proceedings, provides no basis for holding such representatives to a lesser standard of conduct. A contrary rule would permit a party to insulate itself from the consequences of Section 120.59(6), Florida Statutes, by choosing lay representation.
Id. at 1037-1038.
On balance, it is concluded that this case is distinguishable from Burke. For example, unlike in Burke, there was no evidence that Petitioners repeatedly attempted to establish violations of laws not relevant to the proceeding, argued with witnesses, or repeatedly made unsworn ore tenus representations of fact during direct and cross-examination of witnesses. In addition, Petitioners presented testimony and
evidence, including some expert testimony although their evidence was inadequate and insufficient under applicable statutes and rules.
As found, under the totality of these circumstances, it was not proven that Petitioners' participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of Acme's permit modification.
It is recognized that Acme cited Section 57.105(5), Florida Statutes (2003), for the proposition that "the legislature clearly has expanded the grounds for sanctions from simply 'improper purpose' to both unsupported claims and dilatory tactics." Lawrence E. Sellers, "The 2003 Amendments to the Florida APA," 74 Fla. Bar J., Oct. 2003, at p. 76. But Acme only requested sanctions under Sections 120.569(2)(e) and 120.595(1), and it is concluded that Section 57.105(5) does not expand the grounds for sanctions under the other statutes. Acme has not requested sanctions under Section 57.105(5) and cannot do so without complying with paragraph (4) of that statute. For that reason, Section 57.105(5) is inapplicable.
CONCLUSION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the South Florida Water Management
District deny the Amended Petition and issue ERP Permit No. 50-00548-S.
DONE AND ENTERED this 25th day of March, 2004, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2004.
ENDNOTES
1/ Ruling was reserved on objections to the relevance of Exhibit 2, but those objections are now overruled. Petitioners were to have supplied a redacted version of their Exhibit 6, to delete underlining and marginal notations, but that was not done.
2/ SFWMD Exhibit 7 suggests that, immediately south of Peacock Pond, the boundary is farther north, nearer the southern boundary of Peacock Pond, so that a square parcel south of Peacock Pond is excluded from the PUD. It is not clear if, why, or when this parcel was excluded.
3/ Petitioners quibble with statements in the Staff Report that operation of the pump was discontinued on the ground that Polo turned it on from time-to-time. But it was clear that the pump stopped being operated in accordance with the 1979 permit, and there was no detailed evidence as to when and under what circumstances Polo might have decided it was necessary to turn the pump on.
4/ Petitioners complained that Mr. Higgins' calculations to support this finding were not performed until November 2003, but this is because Petitioners did not raise the issue of canal/lakes 12 and 13 until then.
COPIES FURNISHED:
Henry Dean, Executive Director
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
Susan Roeder Martin, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406
Claudio Riedi, Esquire Lehtinen, Vargas & Riedi, P.A.
7700 North Kendall Drive, Suite 303
Miami, Florida 33156-7559
Glenn F. Straub, Qualified Representative 11199 Polo Club Road
Wellington, Florida 33314
Larry A. Zink, Esquire
Zink, Zink, & Zink Co., L.P.A. 1198 Hillsboro Mile, Suite 244 Hillsboro Beach, Florida 33062
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 14, 2004 | Agency Final Order | |
| Mar. 25, 2004 | Recommended Order | Respondent applied to modify a 1979 surface water management permit, primarily to eliminate a water quality treatment facility that could not be used. Reasonable assurances were provided. Respondent did not prove that Petitioners` purpose was improper. |
