St. Johns River Water Management District. je) Kirby B, Green ill, Executive Direotor « David W, Fisk, Assistant Executive Director oS 4049 Reid Street « P.O, Box 1429 » Palatka, FL 32178-1429 * (386) 329-4508 3 2 On the Internet at www.sjnwme.com. oobeenhes wo January 17, 2006 SA Loli Hy GL AWE 90 Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-3060 ) Re: Steve Spratt, et al., vs. City of Deltona and St. Johns River Water Management District; Case Nos. 05-3728 through 05-3765 and 05-38 16 Dear Sir or Madam, lng seal Pursuant to Section 120.57(1)(m), Florida Statutes, this agency is providing a copy of its final order to the Division of Ad ministrative Hearings within 15 days of the final order having been filed with the agency clerk. The final order was filed on January 11, 2006, after the Governing Board's action on January 10th. If you have any questions, please call me at (386) 329-4199, Sincerely, ONAL Kodr Vance Kidder Assistant General Counsel Office of General Counsel GOVERNING BOARD Ometrias D, Long, cHaInMAN David G. Graham, vice cHAIRMAN R, Clay Albright, secretary Duane Otfenstroer, TAEASUBEA APOPKA dACKSONVILLE OCALA JACKSONVILLE W. Leonard Wood John G. Sowinski William Kerr Ann T. Moore FERNANDINA BEACH GRLANDO MELBOURNE BEACH Susan N. Hughes BUNNELL PONTE VEDRA SIR QOO0le- O02, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT STEVE SPRATT, et. al., Petitioners, v. DOAH Case Nos. 05-3728 through 05-3765 and 05-3816 ST. JOHNS RIVER WATER MANAGEMENT DISTRICT and SJRWMD F.O.R. No, 2005 - 54 CITY OF DELTONA, Respondents. FINAL ORDER ia 1. On December 1, 2005, J. Lawrence Johnston, the Administrative | i CPt (“ALJ”), entered an Order Closing Files and thereafter submitted it to the Goveriing Board of the St. Johns River Water Management District, a copy of which is attached hereto as Exhibit A. The Order Closing Files acted upon the ALuJ's previously entered Order Canceling Hearing and Placing Cases in Abeyance, a copy of which is attached hereto as Exhibit B. 2. On December 6, 2005, the St. Johns River Water Management District (the “District") advised the parties of their right to file exceptions to the Recommended Order and that the District considered the Order Closing Files and the Order Canceling Hearing and Placing Cases in Abeyance as the ALJ’s Recommended Order. The Order Closing Files along with the Order Canceling Hearing and Placing Case in Abeyance will hereafter be referred to as the “Recommended Order.” 3. A Petitioner timely submitted Petitioners Joint Exceptions to Recommended Order on December 13, 2005 and Amended Exceptions on December 16, 2005. Neither the City of Deltona (“Deltona”) nor the District filed any exceptions. The District and the Section 4 20.57/( 1)()), Florida Statutes, j hether the Recommended Order Violates the essential requirements of law. BACKGROUND SS ASROUND 6. Petitioners challenged the District Governing Board's September, 2005, Order between September 26 and October 6, 2005, was referred to the Division of Administrative Hearings (DOAH) in early October, ) 7. The challenged Emergency Order authorized the City of Deitona to temporarily Open and operate the Lake Doyle to Lake Bethel High Level Emergency Overflow Interconnection (the System). The City of Deltona was granted’ authorization (1) to: plugging the System's variable weir structure, in accord with permit 4-127-87817-1, by December 7, 2005. the Second Show Cause Order on November 1, 2005. The Respondent City responded to the Second Show Cause Order on November 1, 2005. 10. The ALJ, on November 8, 2005, entered an “Order Canceling Hearing and Placing Case in Abeyance” and in that order the ALJ stated that the petitions would become subject to dismissal once the Emergency Order expired on November 30, 2005. On October 14, 2005, Petitioners filed a “Joint Pleading By All Petitioners” that responded to the Order Canceling Hearing and Placing Case in Abeyance. 11. On December 1, 2005 the ALJ entered an order titled “Order Closing Files” that considered the “Joint Pleadings by All Petitioners” that was filed in response to the Order Canceling Hearing and Placing Case in Abeyance. The Order Closing Files dismissed all cases as moot and Closed the DOAH files. 12. In the Order Canceling Hearing and Placing Case in Abeyance, the ALJ Stated the following with respect to the mootness issue: RULING ON PETITIONERS’ EXCEPTIONS SRS ONERS” EXCEPTIONS 13. The exceptions do not conform to the requirements of Section 120.57(1)(k), F.S. Therefore, they are legally insufficient to warrant rejection or modification of the Recommended Order. Under Section 120.57(1)(k), Florida Siatutes, and Section 28- 106.217(1), Florida Administrative Code, any party may file written exceptions to the recommended order with the agency responsible for rendering final action. Section 120.57(1)(k), Florida Statutes, provides that an agency need not rule on an exception to a recommended order if the exception does not: . a) “clearly identify the disputed portion of the recommended order by page number or paragraph,” b) “identify the legal basis for the exception, or” c) “include appropriate and specific citations to the record.” 14, Petitioners’ exceptions fail to clearly identify the disputed portion of the Recommended Order by page number or paragraph, fail to identify the legal basis for the exception, and lack any appropriate and specific citation to the record. To the extent a party fails to file written exceptions to a recommended order regarding specific issues, the party has waived such specific objections. Environmental Coalition_of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1 DCA 4 991). Thus, Petitioners’ exceptions are denied. Nonetheless, in an abundance of! caution, those exceptions will be addressed in this Final Order. 15. These cases contain a Recommended Order but an evidentiary hearing was not held. The record consists of pleadings and even though the Exceptions do not reference the pleadings as required by Section 120.57(1)(k), Florida Statutes, the Exceptions raise certain issues. Prudence dictates that the Final Order address the issues raised in the Exceptions. 16. The ALJ’s Recommended Order is that the petitions should be dismissed because they are moot. Therefore, the objective of the Exceptions is to provide the ‘Governing Board a reason why the petitions are not moot. A case is “moot” when it no longer presents a live controversy with respect to which the court can give meaningful relief; if events that occur subsequent to the filing of.a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is ‘moot and must be dismissed. Florida Public interest Research Group Citizens Lobby, Inc. v. E.P.A., 386 F. 2d 1070, 1086 (11" Cir, 2004). 17. The Exceptions contend that the cases are not moot and should not be dismissed because (1) the City of Deltona has failed to comply with the permit granted . to the City by the District, (2) the EO might be extended, and (3) without a hearing the Petitioners are denied equal protection and due process. The Exceptions can also be read to state that aspects of the permit are not in compliance with statute and rule. The petitions seek to have the Emergency Order declared void. 18. The basic contention in the Exceptions is that the City of Deltona has not adhered to the permit the District issued to the City. The Petitioners cannot enforce compliance with the permit through having the EO declared void: enforcing the terms of the permit is only effectuated through an action to enforce the permit. Moreover, the Petitioners have apparently availed themselves of the opportunity to contest the proposed amendment to the permit. If not, such an opportunity is in the future. There is no evidence that the Emergency Order has been extended. The challenge to the Emergency Order may not be used to collaterally attack the permit. Hence, ‘any contention that adoption of the Recommended Order would deprive the Petitioners of equal protection or due process is unfounded and therefore adopting the Recommended Order as the Final Order does not deprive the Petitioners of the essential requirements of law. ~ 19. The District's Governing Board concurs with the ALJ's conclusion that, in light of the termination of the Emergency Order, the controversy is now deemed moot and must be dismissed. Petitioners must seek redress of any alleged non-compliance with @ permit in circuit.court and Petitioners, apparently, have challenged a modification to the permit. The Emergency Order was not extended and remedies available to the Petitioners concerning the issued permit and ‘contesting its modification negate the | contention that additional emergency orders at odds with the permit might be issued in the future. Equal Protection and due process are not denied by the dismissal of the petitions. Even if the Emergency Order had not expired, having the Emergency Order declared void would not effectuate compliance with the permit. Thus, Petitioners’ exceptions are rejected. . ACCORDINGLY, IT IS HEREBY ORDERED that: The. Recommended Order is adopted and the cases are dismissed with prejudice. DONE AND ORDERED this low day of January, 2006, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT, DISTRICT , DAVID G. GRAHAM, CHAIRMAN RENDERED this |] day of vanuary, 2006. ’ BY: SANDRA BERTRAM Depuky DISTRICT CLERK @ ® tt STATE-OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STEVE SPRATT, ET AL., Petitioners, Case Nos. 05-3728 through 05-3765 and 05-3816 vs. CITY OF DELTONA and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. we SS SS ew ew Se Se ORDER CLOSING FILES This cause came before the undersigned on.the Order Cancelling.Hearing and Placing Case in Abeyance entered November By 2005, together with the Joint Pleadings By All Petitioners’ filed November 16, 2005, and the’ undersigned being fully advised, it is ORDERED: These cases are dismissed as moot,” and the files of the Division of Administrative Hearings in these cases are closed. DONE AND ORDERED this 1st day of December, 2005, in- Tallahassee, Leon County, Florida. Sdunauce be 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 Exhibit A Filed with the Clerk of. the Division of Administrative Hearings this lst day of December, 2005. ENDNOTES 1/ It is not clear whether the pleading actually was filed by all Petitioners. It was filed by one of the Petitioners, who claimed to be acting on behalf of all Petitioners but was not qualified to represent them as required. See Order entered “October 25, 2005. 2/ One concern raised in-the Joint Pleadings By All Petitioners is that the agency actions at issie in this case would not expire by their own terms on November 30, 2005, but would be "modified or extended by-further Order." See Emergency Order, entered August 11, 2005. First, there is no indication that this has happened. Second, the St. Johns River Water Management District would not have had jurisdiction to do so in this case since the "referring agency shall take no further action with respect to a proceeding under s. 120.57(1), except as a party litigant, as long as the division [of administrative hearings] has jurisdiction over the proceeding under s. 120.57(1) .." * § 120.569(2) (a), Fla. Stat. (2004). COPIES .FURNISHED: Steven L. Spratt 2492 Weatherford Drive Deltona, Florida ‘32738 George J. Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Kealey A. West, Esquire . St..Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Eric Astacio Jeannette Astacio 1401 Sonnet Court Deltona, Florida 32738 ° Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Ronald Beyer Twila Beyer 991 North. Dean Circle Deltona, Florida 32738. “Richard Carroll 1190 Peak Ciréle Deltona, Florida 32738 Roy Clelland 985 South Dean Circle Deltona, Florida 32738 Ed Cornwell Barbara Cornwell 1172 ‘Peak Circle Deltona, Florida 32738 Johnny Dollar Catherine Dollar 1370 Sonnet Court Deltona, Florida 32738 Howard Ehmer Nina. Ehmer 1081 Anza Court Deltona, Florida 32738 Stacey Eslaquit 1490 Amy Circle Deltona, Florida 32738 Jim Fiskell Vickie Fiskell 1136 Peak Circle Deltona, Florida 32738 Marianne Foley 950 Watt Circle Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 ‘Brent Hathaway Lani Hathaway 1036 Lyric Drive . Deltona, Florida 32738. Walter M. Haynes Christine C. Haynes 1410 Sonnet Court Deltona, Florida 32738 David Hester ‘Christy Hester . 1144 Peak Circle Deltona, Florida 32738 Mike Hollingsworth Lori Hollingsworth 2047 Van Orman Drive ; Deltona, Florida 32725 * Richard Kenney 2633 Treehaven Drive Deltona; Florida 32738 Phillip Lott 948 North Watt Circle Deltona, Florida 32738-7919 Walter Lott Lorraine Lott 1413 Golfview Drive . Daytona Beach, Florida 32114 Debbie Low Joseph Low 1056 Peak Circle Deltona, Florida 32738 Bennie Marsala Kathy Marsala 945 Watt Circle Deltona, Florida 32737 Bart McCullen 1536 Amy Circle Deltona, Florida 32738 Denise Morlen 1360 Sonnet Court Deltona, Florida 32738 Charles Mott 1180 Peak Circle Deltona, Florida 32738 Mark Nagy Barbara Nagy 1070 Anza Court Deltona, Florida 32738 James Pavlik 2572 Travida Drive Deltona, Florida 32738 John Rabbit : 2872 Barlshire Court . Deltona, Florida 32738 Allen Reed ‘Kristyne Reed 1391 Sonnet Court Deltona, Florida 32738 David Ribot 1580 Amy Circle Deltona, Florida 32738 Joseph Schell 1072 Peak Circle Deltona, Florida 32738 Russell Smith 970 Peru Court Deltona, Florida 32738 Len Solano Dina Solano . 1162. Peak Circle Deltona, Florida 32738 Richard Steele 961 Peru Court Deltona, Florida 32738 . Ted Sullivan Carol Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Rachel Sterrett 2880 Barlshire Court Deltona, Florida 32738 Kelly White Joseph White 997 North Dean Circle Deltona, Florida 32738 Russell Soucy ‘2498 Weatherford Drive Deltona, Florida 32738 aE STATE OF FLORIDA DIVISION oF ADMINISTRATIVE HEARINGS STEVE SPRATT, et al.,- Petitioners, Case Nos. 05-3728 through 05+3765 and 05-3816 vs. CITY OF DELTONA and ST. -JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. ORDER CANCELLING HEARING AND PLACING CASES IN ABEYANCE This cause came. before the undersigned on the various responses to the Second Order to Show Cause, which have been reviewed. As a result, the undersigned is fully advised. poeelietineetlieai did ae The responses of the Respondents concur that these cases should be placed in abeyance until the agency actions at issue expire by their own terms on November 30, 2005, and the cases become subject to dismissal as being moot. While the responses of several Petitioners: indicate their opposition to dismissal at the time now scheduled, They contend that a final hearing should be scheduled to begin at a later date, which would be after the expiration of the agency actions at issue. Notwithstanding the Opposition of the Petitioners, it is concluded that these cases will become moot upon expiration of the agency actions at issue. It was held in Godwin v. State, 593 So. 24 211, 212 (Fla. Se av state 1992): An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. Dehoff v. imeson, 153 Pla. 553, 15 So.2d 258 Exhibit B (1943). A case is "moot" when it presents no actual controversy or when the issues have ceased to exist. Black's Law Dictionary 1008 (6th ed. 1990). A moot case generally will be dismissed. _ Florida courts recognize at least three instances in which an otherwise moot case will not be dismissed. The first two were stated in Holly v. Auld, 450 So.2a 217, 218 n. 1 (Fla.1984), where we said: "[i]t is well settled that mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur." Third, | an otherwise moot case will not be dismissed if collateral legal consequences.that affect the rights of a party flow from the issue to be determined. See Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978). For examples of administrative orders dismissing proceedings for mootness, see Dept. of Community Affairs v. Monroe County, et al., DOAH Case No. 98-0792GM, 2002 WL 45159 (DOAH RO Jan. 9, 2002) (statutory transitional period after creation of municipality expired, and new municipal comprehensive plan was adopted, so that county comprehensive plan provision previously in effect no longer could affect land within the municipality's boundaries); Calder Race Course, Inc., and Tampa Bay Downs, Inc., et al., v. Department of Business and Prof. Reg., Div. of Pari-Mutuel Wagering, DOAH Case Nos. 95-6180, etc., 1996 WL 1060151 (DBPR FO Jan. 27, 1997; DOAH RO Oct. 30, 1996) (became moot after new statute allowed petitioners to do what old statute required agency permission which they had requested) . The responses of some of the Petitioners suggest that these cases should not’ be dismissed because they are likely to recur. But the agency actions at issue are premised on the 2005 hurricane season. Another such request is not likely; nor can it be presumed that another request on that premise will be granted by the St. Johns River Water Management District; nor, in light of the pending application to modify the Lake Doyle to Lake Bethel Interconnect System, can it be presumed that an emergency authorization premised on the 2006 hurricane season likely will be requested or granted. There has been no assertion that "collateral legal consequences that affect the rights of a party flow from the issue to be determined." Cf. Godwin v. State, supra ("possibility that HRS might attach a lien to Godwin's property in the future" as a result of involuntary commitment was a collateral legal consequence); Soud v. Kendale, Inc., 788 So. 2d ‘1051, 1053 (Fla. ist DCA 2001) (request for attorney's fees pursuant to the statute allowing them when a defendant violates the Sunshine Act was an ancillary proceeding and a collateral © legal consequence. under the statute, not speculative and a mere lost opportunity to potentially recover fees, as in Lund, infra); Lund v. Dept. of Health, etc., 708 So. 2d 645,-647 (Fla. ist DCA 1998) (personal representative's possible entitlement to _ attorney's fees under Section 120.595(5), Florida Statutes, was not a "collateral legal consequence" so as to avoid dismissal of ' appeal from physician's disciplinary suspension after the physician's death mooted the appeal). ot The Petitioners probably would assert that the "great public importance" exception to dismissal of an otherwise moot case would apply in this case because of their interest in establishing that there was in fact no emergency justifying the agency actions at issue. But most of the cases not dismissed under the "great public importance" exception also relied on the "likely to recur" exception. . See, e.g., Enterprise Leasing Co. vw. Jones, 789 So. 2d 964, 965-966 (Fla. 2001); Gregory v. Rice, 727 So. 2d 251, 253 (Fla. 1999); Nichols v. Nichols, 519 Sa. 2a 620, 621 (Fla. 1988); Holly v. Auld, 450 So. 2d 217, 218 n. 1 (Fla. 1984); Ervin v. Capital Weekly Post, Inc., 97 So. 2d 464, 466 (Fla. 1957); Phibro Resources Corp. v. Department of Environmental ‘Regulation, 579 So. 2d 118, 126 (Fla. lst DCA 1991). In other words, if it was not likely to recur, it was not of great importance. Issues that are factually driven, such as the issue here as to whether the particulars of the weather during the hurricane season of 2005 gave rise to an emergency, generally are not the kinds of issues likely to recur. For situations more analogous to the instant case, see, e.g., In Interest of Q. J., 302 So. 2d 161, 163 (Fla. 1974) (only issue concerned the propriety of the prohibition action employed.in an attempt to secure review); Bevan v. Wolfson, 638 So. 2d 527 (Fla. 2nd DCA 1994) (injunctions for protection against repeat violence had expired and were no longer in effect). Similarly,- it is concluded that the agency's justification for its actions at issue no longer would remain of "great public importance" once the agency actions expire by their own terms. Based on the foregoing, The final hearing scheduled for November 16 through 18, 2005, is canceled, expiration of the agency actions at issue on November 30, 2005,. at which time they will become subject to dismissal. and these cases are placed in abeyance until DONE AND ORDERED this 8th day of November, 2005,. in Tallahassee, Leon County, COPIES FURNISHED: Steven L.. Spratt Florida. 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 8th day of November, 2005. 2492 Weatherford Drive Deltona, Florida 32738 George J. Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street | Palatka, Flerida 32177-2529 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Eric Astacio Jeannette Astacio 1401 Sonnet ‘Court Deltona, Florida 32738 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Ronald Beyer Twila Beyer 991 North Dean Circle Deltona, Florida 32738 Richard Carroll 1190 Peak Circle Deltona, Florida 32738" Roy Clelland 985 South Dean Circle Deltona, Florida 32738 _Ed Cornwell Barbara Cornwell 1172 Peak Circle Deltona, Florida 32738 Johnny Dollar Catherine Dollar 1370 Sonnet Court Deltona, Florida 32738 Howard Ehmer Nina Ehmer 1081 Anza Court Deltona, Florida . 32738 Stacey Eslaquit 1490 Amy Circle Deltona, Florida 32738 Jim Fiskell Vickie Fiskell 1136 Peak Circle Deltona, Florida 32738 ' Marianne Foley .950 Watt Circle _ Deltona, Florida 32738 _ Francell Frei 1080 Peak Circle Deltona, Florida 32738 Brent Hathaway Lani Hathaway _ 1036 Lyric Drive Deltona, Florida 32738 Walter M. Haynes Christine C. Haynes 1410 Sonnet Court Deltona, Florida ‘32738 ' David Hester Christy Hester 1144 Peak Circle Deltona, Florida 32738 Mike Hollingsworth Lori Hollingsworth 2047 Van Orman Drive Deltona, Florida 32725 Richard Kenney 2633 Treehaven Drive Deltona, Florida 32738 Phillip Lott 948 North Watt Circle Deltona, Florida 32738-7919 Walter Lott Lorraine Lott 1413 Golfview Drive Daytona Beach, Florida 32114 “Debbie Low ‘ Joseph Low 1056 Peak Circle Deltona, Florida 32738 Bennie Marsala Kathy Marsala 945 Watt Circle Deltona, Florida 32737 Bart McCullen 1536 Amy Circle Deltona, Florida 32738. Denise Morlen 1360 Sonnet Court Deltona, Florida 32738: Charles Mott 1180 Peak Circle Deltona, Florida 32738" Mark Nagy Barbara Nagy 1070 Anza Court Deltona, Florida 32738 James Pavlik 2572 Travida Drive Deltona, Florida 32738 John Rabbit 2872 Barlishire Court Deltona, Florida 32738 Allen Reed Kristyne Reed 1391 Sonnet Court Deltona, Florida 32738 David Ribot 1580 Amy Circle Deltona, Florida 32738 Joseph Schell 1072 Peak Circle Deltona, Florida 32738 ‘Russell Smith 970 Peru Court Deltona, Florida 32738 Len Solano Dina Solano .1162 Peak Circle Deltona, Florida 32738 Richard Steele 961 Peru Court ~ Deltona, Florida 32738. Ted Sullivan Carol Sullivan, | 1489 Timbercrest Drive Deltona, Florida 32738 Rachel Sterrett 2880 Earlshire Court Deltona, Florida 32738 Kelly White Joseph White 997 North Dean Circle Deltona, Florida 32738 Russell Soucy 2498 Weatherford Drive Deltona, Florida 32738 ST, JOH) STANGHNS RIVER WATER AGEMENT DISTRICT STATE OF FLORIDA. DEC 13 sms DIVISION OF ADMINISTRATIVE HEARINGS [Qa 0p, PALATKA, FI - bistaicY eneue STEVE SPRATT, et al. November 13, 2005 Petitioners, ; ; Case Nos. 05-3728 Vs. through 05-3765 CITY OF DELTONA and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents ) ) ) ) ) . ) and 05-3816 ) ) ) ) ) PETITIONER’S JOINT EXCEPTIONS TO RECOMMENDED ORDER Comes now all Petitioner’s pursuant to F.S. 28-106.209 and hereby respond to SJR WMD, Vance Kidder, Assistant General Counsel and to DOAH Administrative Law | Judge, J. Lawrence Johnston’s ORDER CLOSING FILES AND PLACING CASES IN ABEYANCE AND FURTHER DISMISSED ORDER AS MOOT, done and ordered this 1" day of December, 2005. In effect, the Orders taken together are the “Recommended Order”. Petitioners received via U.S. Mail the ORDERS on December 1" and December 8th, 2005, and respond as taxpayers, property owners and citizens all concerned about the environment in which we live. Finding of facts on the issues of the City of Deltona’s request for an Environmental Resource Permit to construct (already constructed structures) that three times have not met the District’s qualifications for complying with the permit terms, instead three Emergency Orders have been issued. The terms of same have also been ignored. Petitioners believe that by and through the ORDER the ALJ has reduced the statutes governing Administrative Hearings to a farce, and that his ORDER in effect says that any emergency order made by any Agency of six months or less is not subject to public scrutiny and not subject to the laws of the State of Florida. We, the Petitioners (taxpayers, affected homeowners and concerned citizens al!) filed our challenges : (Petitions) within the legal time frame dictated by the Florida Statutes. All of our i i petitions v were fourid to have merit. The'ORDER is a judicial imis-intérpretation of the legislange s intent,:when it created the statutes which govern Administrative challenges in Florida: The ORDER appears to be indicative of judicial bias and judicial activism "and should be recanted. Our cases should not have been placed in Abeyance, but should have been acted upon immediately to stop the loss of 1 cfs = 450 gallons per minute = 27,000 gallons per hour = 648,000 gallons of fresh water daily which is being artificially drained from the Lake Theresa Basin where we live. The water is exiting the Basin and contributing to downstream flooding in clear violation of not only the construction permit which called. for the structure to be sealed, but also of the Emergency Order that we challenge through these petitions. The matter is of great importance to those who live in the Lake Theresa Basin and those living downstream where the conveyance empties into the St. Johns River at Lake Monroe. The Administrative Hearing was requested because Emergency Order SIRWMD F.O.R. 2005-51 (Lake Doyle to Lake Bethel Emergency Overflow Interconnection; THE BIG DITCH) allowed operation of an artificial drainage system which remains | unpermitted but has been in use almost constantly since its construction under a similar Emergency Order issued in March of 2003. Now, F.O.R. 2005-51 did not state that it was a “Final Order.” The Emergency Order was requested on July 13, 2005, it was issued on August 11, 2005, and the SIRWMD Governing Board concurred on September 13, 2005, all the while the system was in operation. The Emergency Order was never classified as a Final Order by the Agency (pursuant to Section 120.569(2)(n) F.S. An adequate remedy was not received and should not be considered moot. The Emergency Order was issued on the date that the Construction Permit for the system called fora permanent 8 inch thick brick and mortar plug to be installed. 1. To this date the plug has not been installed voiding the Emergency Order terms Page 4 No. 17. By December 1, 2005 the variable weir structure outfall pipe shall be plugged as indicated in condition 37 of permit number 4-127-87817-1, unless superseded by the issuance of a permit modification. * a) Recommended Ordér May 27, 2005, Page’8, No. 15, as ‘an added assurance; tlié-city * -~ = proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. b. The City Engineer’s drawing dated February 25, 2005, indicates to “plug pipe end with brick and mortar NOTE: use closure module brick (4°°x4°x8") or similar.” Ms. Kealey A.West, Counsel for the District and the City of Deltona gave unequivocal testimony that the system would be plugged so that no water would flow through the weir at Lake Doyle. The Final Order stated “The variable weir structure in Lake Doyle shall remain closed and within 30 days of permit issuance, the permittee shall (1).complete _ construction of the brick and mortar plug as depicted on the plans dated February 25, | 2005, and (2) provide the District certification from a professional engineer that the plug has been constructed in accordance with the plans dated February 25, 2005.” The plug was not installed on December 1, 2005, in accordance with the Emergency Order nor materials ordered for the construction of said plug and on the final date of August 11, 2005, District ordered an Emergency Order F.O.R. No. 2005-51 changed the established elevation level a difference of one-half a foot from 24.5 to 24.0 feet NGVD. c. The project is in violation conclusion of law 40C-4.301 (1) (i) F.A.C. will be capable based on generally accepted engineering and scientific principles of being performed and functioning as proposed. The weir gates in accordance with the drawings of February 25" 2005 cannot be completely close. The bottom elevation is 15 feet; bottom elevation - of the pipe is 21 feet a difference of 6 feet City engineer’s diagram shows gates to be four feet 8 inches the manufacturer of the Gator SG-15 sluice gates state they are 4 feet therefore there is a discrepancy either way they still cannot be closed completely. d. District Proposed recommended order Page 25 No. 90, evidence shows the city has provided reasonable assurance of project as it is based on generally accepted engineering and scientific practices and is capable of functioning as proposed therefore the project meets paragraph 40-C.-4.301 (1) (i) District’s Proposed Recommended Order April 29, 2005, Page 14, E. No. 51, Based on the information provided by the City and general. engineering principles, the system is capable of functioning as proposed (Tr. at 458.) - above proof these are false, as the system has not been completely closed and common sense looking at the drawings prove that conclusion. e. On Tuesday January 13, 2004, Barbara Ash appeared before the Governing Board informing the system could not be closed, it was confirmed by SIRWMD Attorney Thomas Mayton’s statement that 1 gallon of water per minute flows from the system. f. On Sunday, September 19, Greg Fox of Channel 2 News “WESH” and camera man confirmed that with the gates closed water still flowed through the weir system. (Pictures provided in correspondence to Judge Johnston asking for request for relief dated December 1, 2005) received by the division on December 5, 2005.. g. Also Conclusion of Law 40C-4.301 (1) (d) F.A.C. It will adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters as the fish will be trapped in the pipes as not being completely sealed. The non sealing of the pipe will adversely affect the conservation of fish and wildlife, including endangered or threatened species in Rule 40C-4.302 (1)(a)2, P.A.C. h, Recommendations are the facts that the system cannot function within the Conclusion of Law of the F.A.C. listed above and terms have expired for the Emergency Order. From the time of February 25, 2005, drawing the City knew the pipe was to be plugged total often months. From July 12, issuance of the permit a total of 140 days and then the issuance of the Emergency Order August 11, 2005 to December 1, 2005, was 111 days all this time the City and District could not comply with the conditions of the emergency order therefore the entire project should be denied, closed and returned to the original condition as specified in the Districts recommended and final order the city of Deltona shall plug the overflow weir structure return the downstream conveyance system to the prior condition depicted as existing and cease operating the system these activities should be completed within thirty days of notification by the district. This was the same order issued from the emergency order F.O.R. No. 2003-38 dated March 25" 2003, page 4 No.13. and it is with reasoriable assurance that the City nor District has not tried to comply with the law. Or Final Order May 27, 2005, page 29 No. 92 the evidence was unequivocal, from both: the city and the district, that the system would be plugged so that no. water would flow through the weir at Lake Doyle. Also violating Rule 40C-4.751 _Enforcement F.A.C.. Construction was not completed in accordance with permit, and altered without a permit; therefore should be denied and restored to its pre-construction condition. , The system has been used Since March of 2003 and operated under 3 Emergency Orders and Governor Jeb Bush’s Executive Order 03-60 authorization to open the ditch at Ledford Drive to relieve flooding for 60 days, District Ex. No. 5, March 31, 2005, not to draw down an entire basin, despite the fact that there has never been any evidence that any emergency actually existed during those two and a half years. 2. The Emergency Order Page 2, No. 8. the Florida Department of Environmental Protection has listed Lake Monroe as impaired for nutrients. Creating a new source of nutrient loading will increase the overall nutrient loading to Lake Monroe thereby contributing to a violation of state water quality standards in this incident since the discharge is being limited to the minimum needed to alleviate the emergency and is temporary. It is in violation as being extended past the December 1, 2005, date. violating Rule 40C-4.302(1)(a)7(b) F.A.C., project will cause unacceptable cumulative impacts upon wetlands and the St. Johns River in that it will further aggravate the unacceptable phosphorus loading into the St. Johns River. a. Recommended Order May 27" 2005, Page 15 No. 41, water quality is a concern for the district. Lake Monroe is included on the Florida Department of Environmental Protection’s verified list of impaired water bodies for nitrogen phosphorus and dissolves oxygen. Water quality data for Lake Monroe indicates the lake has experienced high levels of nitrogen and phosphorus and low levels of dissolved oxygen. b. District proposed recommended order Page 11 No.33, the system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel resulting in no outfall from the Theresa Basin to Lake Monroe and therefore no contribution from the Lake Theresa Basin of nitrogen and phosphorus loadings to Lake Monroe will occur as a result of this project Tr. at 457:, district exhibit No. 38. And Page il No. 35, the system will operate with the overflow structures closed and a brick and mortar plug in the outfall | pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no out fall from the Theresa basin to Lake Monroe therefore, minimum flows establish for surface waters within the Theresa Basin will not be adversely impacted (Tr. at 457: district exhibit No. 38.) c. Rule No. 40C-— 4.302 (1) (a) 7 (b) F.A.C. the city of Delta’s project has caused unacceptable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate an unacceptable phosphors loading into the St. John’s River. The system was not plugged on December 1, 2005 limiting the minimum needed to alleviate the emergency in violation of the Emergency Order page 3 no. 8 and no. 9. 3. Emergency Order page 4 no. 15, Deltona shall close the system any time the water elevation of Lake Bethel equals or exceeds 5.5 feet NGVD. March 25, 2004, Technical Staff Report shut-off elevation schedule for Lake Bethel July through November elevation is 5.0 feet NGVD, District cannot stay consistent with rules, not even with the cutoff water elevations as changing from 23.5 to 23.9 to 22.1 to 24.5 and 24.0. to name a few. a. Emergency Order Page 5, No. 20, any activities conducted under this Authorization must not cause flooding and must be consistent with the terms of this Authorization. b. It is well documented that the St. Johns River floods at 5.8 feet at Stone Island. The system did not get plugged on December 1, 2005, and water is still flowing, the water level at Lake Bethel exceeded 6 feet before December 1, 2005, but water is still flowing. c. Recommended Order May 27", 2005, page 12 No. 29, both the city and the district recognized that areas downstream from the project site, such as Stone Island and Sanford, have experience flooding in the past in time of high amounts of rainfall. Rule 40C- - = - 4,302(1)(a) F.A.C. Because the city of Deltona’s project is located in, on and over wetlands and other surface waters, the city of Deltona must demonstrate that its proposed activity will not be contrary to the public interest. In conjunction therewith, that , petitioner alleges that the proposed activity will adversely affect property. Which there is proof of flooding conditions in Stone Island and is contrary to the public interest as 39 Petitions have been filed against the project. d. Rule 40C-4.301 (1)(b) F.A.C. It will and has caused adverse flooding to off site property. Neither the District nor City has enforced the plugging of the pipe by December 1, 2005, to alleviate the flooding condition. City of Deltona’s letter dated July 13" proves that “we can only operate the overflow when Lake Monroe is within the operating stages specified in our agreements” Reasonable assurance has not been fulfilled to assure the plugging of the pipe therefore not in compliance with the Emergency Order or the Permit. Rule 40C-4.301(1)(a) F.A.C. it has caused adverse water quantity impacts to receiving waters and adjacent lands. 4. The Governing Board is violating Florida Statutes 373.036 the governing board shall give careful consideration to the requirements of public recreation and to the protection and procreation of fish and: wildlife. 5. Exception to Recommended Order violation is Rule 40C-4.301(1)() F.A.C. it will cause adverse secondary impacts to water resources in that it will diminish aquifer recharge. 6. Exception to Recommended Order violation is Rule 40C-4.301(1)(g) F.A.C. it will and has impacted the maintenance of surface or groundwater levels 7. Also terms of the Technical Staff Report that closed channel gates and riser boards at the Ledford Drive and railroad berm structures, respectively be installed by same date, August 11, 2005, again no record of material purchased for the construction of same “proving that with “reasotiable assurance” the project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term ‘ “emergency” i is a result of an immediate danger to the public health, safety, or welfare, but there is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the lakes ’ in the Lake Theresa Basin flooded but the District violated the terms of the construction permit and opened the gates and they remain in full operation until the end of the hurricane season. Rule 40C-4,301 and 4,302 and 40C-4.041(1) F.A.C. Prior to construction, alteration, operation, maintenance, an environmental resource permit must be obtained from the District. Three times this has been avoided by the issuance of the so called Emergency Orders; because of the knowledge of discrepancies in the gate size and knowing they are not capable of functioning correctly. Plus avoiding the installation of the riser boards per the Technical Staff Report (TSR) so not in compliance with the permit terms. 8. Emergency Order No. 3 on July 7" 2005, Deltona submitted an application to modify the above referenced permit (Application No. 4-127-87817-2) to construct five drainage retention/detention areas, to.offset the anticipated increases in pollutant loads to Lake Monroe. The permit has not been approved violation 40C-4.041(1) F.A.C. Prior to operation an environmental resource permit must be obtained from the District. This project is being challenged in an Administrative Hearing on January 26, 2006. The District Handbook 13.9 detention drainage page 13 — 8 and District publication state “retention systems are close systems constructed ‘so that storm water does not reach natural water bodies.” Objection letters were received by the district for the permit but the district opened the system without a permit allowing retention and natural water bodies to flow together into Lake Monroe an impaired water body violating 40C-4.041 F.A.C. a permit is required prior to operation. And 40C-4.302(1)(a)7(b), F.A.C. project will cause unexceptionable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate the unacceptable phosphorus loading into the St. John’s River Therefore, exceptions to Recommended Order is necessary to determine whether this cause can be amicably resolved.” An adequate remedy was not allowed to be heard emergency. As you state the agency actions expire by their own terms is not true as the date maybe extended beyond the November 30" date as under No, 23, Page 5, EO. and Construction shal] begin until a Permit is issued, The ERP construction permit No. 4-127-878] 7-1 approved on July 12, 2005., was - purchased for the construction of same proving that with “reasonable assurance” the - project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term “emergency” is a result of an immediate danger to the public health, safety, or welfare, ~ but there is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the Jakes in the Lake Theresa Basin flooded but the District violated the terms of the construction permit and opened the gates and they remain in operation. . Operation of the system constitutes a violation of State water quality standards as the receiving water body, Lake Monroe, has been classified as Critically Impaired by the very agency which issues these recurrent emergency orders. Their own Rules and the Florida Statutes allow no new discharge into critically impaired water bodies within the State of Florida. The District attorneys are violating their Florida Bar Oath “I will not counsel any proceeding which shall appear to me to be unjust.” In their professionalism of ethics they know of the discrepancies, omissions, and errors in quoting the Florida statues and Florida Administrative Codes. The District continually is making the same mistakes per their own Mr. Lee Kissick’s statement” Even if you fill a wetland in violation — if you build a project and didn’t get a permit, you’re expected to get an after the fact permit and then do everything you can in your power after the fact to comply with the rules”. This project was denied twice due to environmental reasons, was initiated again due to Governor Jeb Bush’s Executive Order 03-60, but the District violated the terms of the Governor’s Executive Order. District violated a written agreement and project meeting on September 2, 2004 and on September 3, 2004 with project in litigation granted Emergency Order F.O.R. 2004-75 to open the gates without a permit. How many more objections to operating the system are allowed before the District takes action to declare the system closed? Therefore, all the petitioners on the Service List deserve to have a hearing to learn why the Emergency Orders were initiated and violated the permit conditions, and the District’s rules, statutes and Florida Administrative Codes when there is not an emergency which is supposedly necessitated by immediate danger. Also to understand working conditions of the system and all conditions of the system should be recorded in one document without discrepancies between the Technical Staff Report, the City’s drawings and the Final Order containing further information, and to understand the issuance of unnecessary Emergency Orders. As taxpayers and property owners we should be entitled to learn of all conditions and modifications of the system as our '. Property values are negatively impacted and our environment is harmed. And most importantly this system cannot be effectively operated at the time of need, therefore, our cases should not be dismissed and we should be granted the opportunity of justice to be heard or another Judge assigned to the case. And abide by the District Ruling “If the City does not fulfill the permit conditions, the City will be Tequired to plug the overflow weir structure and return the downstream conveyance system to its prior condition within 30 days of notification by the District. , RESPECTFULLY SUBMITTED this 13" day of December, 2005 by the undersigned Petitioners, /s/ Steven L. Spratt Steven L. Spratt _ 2492 Weatherford Dr., Deltona, FL 32738 /s/ Barbara Ash Barbara Ash 943 South Dean Circle Deltona, FL 32738 Is! Eric Astacio Eric Astacio /s/ Jeannette Astacio Jeannette Astacio 1401 Sonnet Court Deltona, FL 32738 /s/ Gloria Benoit Gloria Benoit 1300 Tartan Ave, Deltona, FL 32738 /s/ Roland Beyer & Twila Beyer Roland Beyer Twila Beyer 991 North Dean Circle Deltona, FL 32738 /s{ Richard Carroll Richard Carroll 1190 Peak Circle Deltona, FL 32738 !s! Ed Cornwell & Barbara Cornwell Ed Cornwell Barbara Cornwell 1172 Peak Circle Deltona, FL 32738 /s/ Johnny Dollar & Catherine Dollar Johnny Dollar Catherine Dollar 1370 Sonnet Court Deltona, FL 32738 /si Howard Ehmer & Nina Ehmer Howard Ehmer Nina Ehmer 1081 Anza Court, Deltona, FL 32738 /s/ Stacey (Dib) Eslaquit Stacey Eslaquit 1490 Amy Circle Deltona, FL 32738 /s/ Jim Fiskell & Vickie Fiskell Jim Fiskell Vickie Fiskell 1136 Peak Circle Deltona, FL 32738 /s/ Marianne Foley Marianne Foley 950 Watt Circle Deltona, FL 32738 /s/ Francell Frei Francell Frei 1080 Peak Circle Deltona, FL 32738 /s/ Brent Hathaway & Lani Hathaway Brent Hathaway Lani Hathaway 1036 Lyric Dr. Deltona, FL 32738 /s/ Walter M. Haynes & Christine C. Haynes Walter M. Haynes . Christine C. Haynes 1410 Sonnet Court Deltona, FL 32738 /s/ David Hester & Christy Hester David Hester Christy Hester 1144 Peak Circle Deltona, FL 32738 /s/ Mike Hollingsworth & Lori Hollingsworth Mike Hollingsworth Lori Hollingsworth 2047 Van Orman Dr. Deltona, FL 32725 /s/ Richard Kenney Richard Kenney 2633 Treehaven Dr. Deltona, FL 32738 /s/ Phillip Lott Phillip Lott 948 North Watt Circle Deltona, FL 32738-7919 /s/ Walter Lott & Lorraine Lott Walter Lott Lorraine Lott 1413 Golfview Dr. Daytona Beach, FL 32114 ‘s/ Debbie Low & Joseph Low Debbie Low Joseph Low 1056 Peak Circle Deltona, FL 32738 ‘sf Bennie Marsala & Kathy Marsala Bennie Marsala Kathy Marsala 945 Watt Circle Deltona, FL 32737 !s/ Bart McCullen - Bart McCullen 1536 Amy Circle Deltona, FL 32738 /s/ Denise Morlen Denise Morlen 1360 Sonnet Court Deltona, FL 32738 !s/ Charles Mott Charles Mott 1180 Peak Circle Deltona, FL 32738 /s/ Mark Nagy & Barbara Nagy Mark Nagy Barbara Nagy 1070 Anza Court Deltona, FL 32738 /s/ James Pavlik James Pavlik 2572 Travida Dr. Deltona, FL 32738 /s/ John Rabbit John Rabbit 2872 Earlshire Ct. Deltona, FL 32738 /s/ Allen Reed & Kristyne Reed Allen Reed Kristyne Reed 1391 Sonnet Court Deltona, FL 32738 /s/ David Ribot David Ribot 1580 Amy Circle, Deltona, FL 32738 /s/ Joseph Schell Joseph Schell 1072 Peak Circle Deltona, FL 32738 .ds/ Russell Smith Russell Smith 970 Peru Court Deltona, FL 32738 /s/ Len Solano & Dina Solano Len Solano Dina Solano 1162 Peak Circle, Deltona, FL 32738 /s/ Richard Steele Richard Steele 961 Peru Court Deltona, FL 32738 /s/ Ted Sullivan & Carol Sullivan Ted Sullivan , Caro! Sullivan 1489 Timbercrest Dr. Deltona, FL 327838 /s/ Rachel Sterrett Rachel Sterrett 2880 Earlshire Ct. Deltona, FL 32738 /s/ Kelly White & Joseph White Kelly White Joseph White 997 North Dean Circle Deltona, FL 32738 /s/ Russell Soucy Russell Soucy 2498 Weaiherford Drive Deltona, FL 32738 WHS7D LL Sia VOIHO’s “VuHLV Wed som 91 930 STATE OF FLORIDA - 14:500M ‘DIVISION OF ADMINISTRATIVE HEARINGS — dSitsegani'Sinar is _ STEVE SPRATT, et al., ” “November 13, 2005 Petitioners, ; Case Nos. 05-3728 Vs. through 05-3765 CITY OF DELTONA and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents ) ) ) ) ) ) and —-’: 05-3816 ) ) ) ) ) AMENDED PETITIONER’S EXCEPTIONS TO RECOMMENDED ORDER Comes now all Petitioner’s pursuant to F.S. 28-106.209 and hereby respond to SJIRWMD, Vance Kidder, Assistant General Counsel and to DOAH Administrative Law Judge, J. Lawrence Johnston’s ORDER CLOSING FILES AND PLACING CASES IN ABEYANCE AND FURTHER DISMISSED ORDER AS MOOT, done and ordered this 1* day of December, 2005. In effect, the Orders taken together are the “Recommended Order”. Petitioners received via U.S. Mail the ORDERS on December 1" and December 8th, 2005, and respond as taxpayers, property owners and citizens all concerned about the environment in which we live. Finding of facts on the issues of the City of Deltona’s request for an Environmental Resource Permit to construct (already constructed structures) that three times have not met the District’s qualifications for complying with the permit terms, instead three Emergency Orders have been issued. The terms of same have also been ignored. Petitioners believe that by and through the ORDER the ALJ has reduced the statutes governing Administrative Hearings to a farce, and that his ORDER in effect says that any emergency order made by any Agency of six months or less is not subject to public scrutiny and not subject to the Jaws of the State of Florida. We, the Petitioners (taxpayers, affected homeowners and concerned citizens all) filed our challenges (Petitions) within the legal time frame dictated by the Florida Statutes. All of our petitions were found to have merit. The ORDER isa judicial mis-interpretation of the legislature’s intent, when it created the statutes which govern Administrative challenges in Florida. The ORDER appears to be indicative of judicial bias and judicial activism and should be recanted. a Our cases should not have been placed in Abeyance, but should have been acted upon immediately to stop the loss of 1 cfs = 450 gallons per minute = 27,000 gallons per “hour = 648,000 gallons of fresh water daily which is being artificially drained from the Lake Theresa Basin where we live. The water is exiting the Basin and contributing to downstream flooding in clear violation of not only the construction permit which called for the structure to be sealed, but also of the Emergency Order that we challenge through these petitions. The matter is of great importance to those who live in the Lake Theresa Basin and those living downstream where the conveyance empties into the St. Johns River at Lake Monroe. ; The Administrative Hearing was requested because Emergency Order SIRWMD F.O.R. 2005-51 (Lake Doyle to Lake Bethe] Emergency Overflow Interconnection; THE BIG DITCH) allowed operation of an artificial drainage system which remains unpermitted but has been in use almost constantly since its construction under a similar Emergency Order issued in March of 2003. Now, F.O.R. 2005-51 did not state that it was a “Final Order.” The Emergency Order was requested on July 13, 2005, it was issued on August 11, 2005, and the SIRWMD Governing Board concurred on September 13, 2005, all the while the system was in operation. The Emergency Order was never classified as a Final Order by the Agency (pursuant to Section 120.569(2)(n) F.S. An adequate remedy was not received and should not be considered moot. The Emergency Order was issued on the date that the Construction Permit for the system called for a permanent 8 inch thick brick and mortar plug to be installed. 1, To this date the plug has not been installed voiding the Emergency Order terms Page 4 No. 17. By December 1, 2005 the variable weir structure outfall pipe shall be plugged as indicated in condition 37 of permit number 4-127-87817-1, unless superseded by the issuance of a permit modification. a. . Recommended Order May 27, 2005, Page 8, No. 15, as an added assurance, the city proposes to place a brick and mortar phig in the Lake Doyle weir structire outfall pipe to prevent any discharge from the weir. b. The City Engineer’s drawing dated February 25, 2005, indicates to “plug pipe end with. brick and mortar NOTE: use closure module brick (4”x4”x8”) or similar. » Ms. Kealey A. West, Counsel for the District and the City of Deltona gave unequivocal testimony that the system. would be plugged so that no water would flow through the weir at Lake Doyle. The Final Order stated “The variable weir structure in Lake Doyle shall remain closed and within 30 days of permit issuance, the permittee shall (1) complete construction of the brick and mortar plug as depicted on the plans dated February 25, 2005, and (2) provide the District certification from a professional engineer that the plug has been constructed in accordance with the plans dated February 25, 2005.” The plug was not installed on December 1, 2005, in accordance with the Emergency Order nor " materials ordered for the construction of said plug and on the final date of August 11, 2005, District ordered an Emergency Order F.O.R. No. 2005-51 changed the established elevation level a difference of one-half a foot from 24.5 to 24.0 feet NGVD. c. The project is in violation conclusion of law 40C-4.301 (1) (i) F.A.C. will be capable based on generally accepted engineering and scientific principles of being performed and functioning as proposed. The weir gates in accordance with the drawings of February 25h 2005 cannot be completely close. The bottom elevation is 15 feet; bottom elevation of the pipe is 21 feet a difference of 6 feet City engineer’s diagram shows gates to be four feet 8 inches the manufacturer of the Gator SG-15 sluice gates state they are 4 feet therefore there is a discrepancy either way they still cannot be closed completely. d. District Proposed recommended order Page 25 No. 90, evidence shows the city has provided reasonable assurance of project as it is based on generally accepted engineering and scientific practices and is capable of functioning as proposed therefore the project meets paragraph 40-C.-4.301 (1) (i) District’s Proposed Recommended Order April 29, 2005, Page 14, E. No. 51, Based on the information provided by the City and general engineering principles, the system is capable of functioning as proposed (Tr. at 458.) above proof these are false, as the system has not been completely closed and common sense looking at the drawings prove that conclusion. e. On Tuesday January 13, 2004, Barbara Ash appeared before the Governing Board informing the system could not be closed, it was confirmed by SIRWMD Attommey Thomas Mayton’s statement that 1 gallon of water per minute flows from the system. . £ On Sunday, September 19, Greg Fox of Channel 2 News “WESH” and camera man confixmed that with the gates closed water still flowed through the weir system. (Pictires provided in correspondence to Judge J ohnston asking for sequest for relief dated - December 1, 2005) received by the division on December-5, 2005.. . g. Also Conclusion of Law 40C-4.301 (1) (d) F.A.C. It will adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters as the fish will be trapped in the pipes as not being completely sealed. The non sealing of the pipe will adversely affect the conservation of fish and wildlife, including endangered or threatened species in Rule 40C-4,302 (1)(a)2, F.A.C. , ‘ h. Recommendations are the facts that the system cannot function within the Conclusion of Law of the F.A.C. listed above and terms have expired for the Emergency Order. From the time of February 25, 2005, drawing the City knew the pipe was to be plugged total of ten months. From July 12, issuance of the permit a total of 140 days and then the issuance of the Emergency Order August 11,2005 to December 1, 2005, was 111 days all this time the City and District could not comply with the conditions of the emergency order therefore the entire project should be denied, closed and returned to the original condition as specified in the Districts recommended and final order the city of Deltona shali plug the overflow weir structure return the downstream conveyance system to the prior condition depicted as ‘existing and cease operating the system these activities should be completed within thirty days of notification by the district. This was the same order jssued from the emergency order F.O.R. No. 2003-38 dated March 25th 2003, page 4 ‘No.13. and it is with reasonable assurance that the City nor District has not tried to comply with the law. Or Final Order May 27, 2005, page 29 No. 92 the evidence was unequivocal, from both the city and the district, that the system would be plugged so that no water would flow through the weir at Lake Doyle. Also violating Rule 40C-4.751 Enforcement F.A.C. Construction was not completed in accordance with permit, and altered without a-permit; therefore should be denied and restored to its pre-construction condition. The system has been used Since March of 2003 and operated under 3 Emergency Orders and Governor Jeb Bush’s Executive Order 03-60 authorization to open thé-ditch at - ™ ~~ Ledford Drive to relieve flooding for 60 days, District Ex. No. 5, March 31, 2005, not to draw down an entire basin, despite the fact that there has never been any evidence that any emergency actually existed during those two and’a half years. , . 2. The Emergency Order Page 2, No. 8. the Florida Department of Environmental Protection has listed Lake Monroe as impaired for nutrients. Creating a new source of nutrient loading will increase the overall nutrient loading to Lake Monroe thereby: contributing to a violation of state water quality standards in this incident since the discharge is being limited to the minimum needed to alleviate the emergency and is temporary. Itis in violation as being extended past the December 1, 2005, date. violating : Rule 40C-4.302(1)(a)7(b) F.A.C., project will cause unacceptable cumulative impacts upon wetlands and the St. Johns River in that it will further aggravate the unacceptable phosphorus loading into the St. Johns River. a. Recommended Order May 27", 2005, Page 15 No. 41, water quality is a concern for the district. Lake Monroe is included on the Florida Department of Environmental Protection’s verified list of impaired water bodies for nitrogen phosphorus and dissolves oxygen. Water quality data for Lake Monroe indicates the lake has experienced high levels of nitrogen and phosphorus and low levels of dissolved oxygen. ° b. District proposed recommended order Page 11 No.33, the system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel resulting in no outfall from the Theresa Basin to Lake Monroe and therefore no contribution from'the Lake Theresa Basin of nitrogen and phosphorus loadings to Lake Monroe will occur as a result of this project Tr. at 457: district exhibit No. 38. And Page 11 No. 35, the system will operate with the overflow siructures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no out fall from the Theresa basin to Lake Monroe therefore, minimum flows establish for surface waters within the Theresa Basin will not be adversely impacted (Tr. at 457: district exhibit No. 38.). c. Rule No. 40C- 4.302 (1) (a) 7 (6) F.A.C. the city of Delta’s project has caused unacceptable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate an unacceptable phosphors loading into the St. John’s River. The system was not plugged on December 1, 2005 limiting the minimum needed to alleviate — the emergency in violation of the Emergency Order page 3 no. 8 and no. 9. 3. Emergency Order page 4 no. 15, Deltona shall close the system any time the water elevation of Lake Bethel equals or exceeds 5.5 feet NGVD. March 25, 2004; Technical “- Staff Report shut-off elevation schedule for Lake Bethel July through November ' elevation is 5.0 feet NGVD, District cannot stay consistent with rules, not even with the cutoff water elevations as changing from 23.5 to 23.9 to 22.1 to 24.5 and 24.0. to name a few. ; a, Emergency Order Page 5, No. 20, any activities conducted under ihis Authorization ‘ must not cause flooding and must be consistent with the terms of this Authorization.. b. It is well documented that the St. Johns River floods at 5.8 feet at Stone Island. The system did not get plugged on December 1, 2005, and water is still flowing, the water level at Lake Bethel exceeded 6 feet before December 1, 2005, but water is still flowing. c. Recommended Order May 27", 2005, page 12 No. 29, both the city and the district recognized that areas downstream from the project site, such as Stone Island and Sanford, have experience flooding in the past in time of high amounts of rainfall. Rule 40C- 4.302(1) (a) F.A.C. Because the city of Deltona’s project is located in, on and over wetlands and other surface waters, the city of Deltona must demonstrate that its proposed activity will not be contrary to the public interest. In conjunction therewith, that petitioner alleges that the proposed activity will adversely affect property. Which there is proof of flooding conditions in Stone Island and is contrary to the public interest as 39 Petitions have been filed against the project. d. Rule 40C-4.301 (1)(b) F.A.C. It will and has caused adverse flooding to off site property. Neither the District nor City has enforced the plugging of the pipe by December 1, 2005, to alleviate the flooding condition. City of Deltona’s letter dated July 13" proves that “we can only operate the overflow when Lake Monroe is within the operating stages specified in our agreements” Reasonable assurance has not been fulfilled to assure the plugging of the pipe therefore not in compliance with the Emergency Order or the Permit. Rule 40C-4.301(1)(a) F.A.C- it has caused adverse water quantity impacts to receiving waters and adjacent Jands. 4, The Governing Board is violating Florida Statutes 373.036 the governing board shall bed . we. give careful consideration to the requirements of public recreation-and tothe protection “> ~~~" ~~ and procreation of fish and wildlife. 5. Exception to Recommended Order violation is Rule 40C-4.301(1)(f F.A.C. it will cause adverse secondary impacts to water resources itr that it will diminish aquifer’ ’ recharge. 6, Exception to Recommended Order violation i is Rule 40C-4. 3010) F.A.C. it will-and has impacted the maintenance of surface or groundwater levels. 7. Also terms of the Technical Staff Report that closed channel gates and riser. boards at the Ledford Drive and railroad berm structures, respectively be installed by same date, : August 11, 2005, again no record of material purchased for the construction of same. proving that with “reasonable assurance” the project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term “emergency” is a result of an immediate danger to the public health, safety, or welfare, but there is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the lakes in the Lake Theresa Basin flooded but the District violated the terms of the construction permit and opened the gates and they remain in full operation until the end of the — hurricane season, Rule 40C-4.301 and 4.302 and 40C-4.041(1) F.A.C.. Prior to construction, alteration, operation, maintenance, an environmental resource permit must be obtained from the District. Three times this has been avoided by the issuance of the so called Emergency Orders; because of the knowledge of discrepancies in the gate size and knowing they are not capable of functioning correctly. Avoiding the installation of the riser boards per the Technical Staff Report (TSR) therefore not in compliance with the permit terms. 8. Emergency Order No. 3 on July 7" 2005, Deltona submitted an application to modify the above referenced permit (Application No. 4-127-87817-2) to construct five drainage retention/detention areas, to offset the anticipated increases in pollutant loads to Lake Monroe. The permit has not been approved violation 40C-4.041 (1) F.A.C. Prior to operation an environmental resource permit must be obtained from the District. This project is being challenged in an Administrative Hearing on January 26, 2006. The - District Handbook 13.9 detention drainage page 13 - 8 and District publication state retention systems are close systems constructed so that storm water does not reach natural water bodies.” Objection letters were received by the district for the permit but the district opened the system without a permit allowing retention and natural water bodies to flow together into Lake Monroe an impaired water body violatifig 40C-4.041 F.A.C. a permit is required prior to operation. And 40C-4.302(1)(a)7(b), F.A.C. project will cause unexceptionable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate the unacceptable phosphomus loading into the St. John’s River ‘ . Therefore, exceptions to Recommended Order are necessary to determine whether this cause can be amicably resolved. An adequate remedy was not allowed to be heard and the emergency order was issued on the date the plug was to have been completed, therefore the probable assurance that the plug would be installed was false. The system was operated again without a construction permit and/or operating permit and the same emergency issues keep re occurring when it has not been established that there was an emergency. As you state the agency actions expire by their own terms is not true as the date: maybe extended beyond the November 30" date as under No. 23, Page 5, E.O. and stated in the 2""” To Show Cause” ‘unless modified or extended by further Order.’ The District did not abide by the rules of the permit and have not abided by the Emergency Order terms. The weir system must be modified as it cannot be completely closed in accordance with the February 25, 2005 plans. Violating 40C-4.301(1) (i), F.A.C. Engineering principles of being performed and of functioning as proposed. That was the reason for the installation of the 8” thick brick and mortar plug greater than a half mile away from the weir structure (3,524 linear feet) as the weir cannot be completely closed. The Petitioners are being denied equal protection of the law and deserve the opportunity to challenge the Emergency Order as the terms were not completed. We were denied the Prehearing Conferences pursuant to 28-106-209 F.S. to discuss possibility of settlement to have the plug installed immediately to stop down stream flooding. Moot is when issues have ceased to exist this is not the case as explained previously emergency issues keep re occurring. We are not receiving fair and impartial handling of the matter. This project was started under false pretenses and it violated 40C-4.041(1) F.A.C. No construction shall begin until a permit is issued. ~ The ERP constfuction permit No: 4-127-87817-1 approved on July 12, 2005., was violated The Final Order No. 10, Page 12, “The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle'to Lake Bethel.” F. O. No. 44, pg. 15 , “The system will operate with the overflow structures closed and a brick and mortar plug . in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe.” Changed wording of terms unless modified or extended by further Order. Also terms of the Technical Staff Report that closed channel gates and riser boards at the Ledford Drive and railroad berm structures, respectively be installed by same date, August 11, 2005, again no record of material purchased for the construction of same proving that with “reasonable assurance” the ' project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term “emergency” is a result of an immediate danger to the public health, safety, or welfare, but there is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the lakes in the Lake Theresa Basin flooded but the» Disirict violated the terms of the construction permit and opened the gates and they remain in operation. Operation of the system constitutes a violation of State water quality standards as the receiving water body, Lake Monroe, has been classified as Critically Impaired by the very agency which issues these recurrent emergency orders. Their own Rules and the Florida Statutes allow no new discharge into critically impaired water bodies within the State of Florida. The District attorneys are violating their Florida Bar Oath “I will not counsel any proceeding which shall appear to me to be unjust.” In their professionalism of ethics they know of the discrepancies, omissions, and errors in quoting the Florida statues and Florida Administrative Codes. ' The District continually is making the same mistakes per their own Mr. Lee Kissick’s statement” Even if you fill a wetland in violation - if you build a project and didn’t get a permit, you’re expected to get an after the fact permit and then do everything you can in your power after the fact to comply with the rules”. This project was denied twice due to environmental reasons, was initiated again due to Governor Jeb Bush’s Executive Order 03-60, but the District violated the terms of the Governor’s Executive Order. District violated a written agreement and project meeting on September 2, 2004 and on September 3, 2004 with project in litigation granted Emergency Order F.O.R.. 2004-75 to open the gates without a permit. How many more objections {0 operating the © _ system are allowed before the District takes action to declare the system closed? Therefore, all the petitioners on the Service List deserve to have a hearing to learn why the Emergency Orders were initiated and violated the permit conditions, and the District’s rules, statutes and Florida Administrative Codes when there is not an emergency which is supposedly necessitated by immediate danger. Also to understand - working conditions of the system and all conditions of the system should-be recorded i in one document without discrepancies between the Technical Staff Report, the City’s’ drawings and the Final Order containing further information, and to understand the issuance of unnecessary Emergency Orders. As taxpayers and property owners we should be entitled to learn of all conditions and modifications of the system as our property values are negatively impacted and our environment is harmed. And most importantly this system cannot be effectively operated at the time of need, therefore, our cases should not be dismissed and we should be granted the opportunity of justice to be heard or another Judge assigned to the case. And abide by the District Ruling “If the City does not fulfill the permit conditions, the City will be required to plug the overflow weir structure and return the downstream conveyance system to its prior condition within 30 days of notification by the District. RESPECTFULLY SUBMITTED this is day of December, 2005 CERTIFICATE OF SERVICE tA SSS eS WE HEREBY CERTIFY that on this 15th day of December, 2005, the original of the foregoing has been furnished to DOAH, at (850) 921-6847, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; and that a true and correct copy of the foregoing has been furnished to all parties on the attached SERVICE LIST. SERVICE LIST pee UE /s/ Steven L. Spratt @ @ Steven L. Spratt 2492 Weatherford Dr., Deltona, FL 32738 s/s Barbara Ash _ Barbara Ash 943 South Dean Circle Deltona, FL 32738 s/s Eric Astacio Eric Astacio s/s Jeannette Astacio’ Jeannette Astacio 1401 Sonnet Court Deltona, FL 32738 s/s Gloria Benoit Gloria Benoit 1300 Tartan Ave, Deltona, FL 32738 s/s Roland Beyer & Twila Beyer Roland Beyer Twila Beyer 991 North Dean Circle Deltona, FL 32738 /s/ Richard Carroll Richard Carroll 1190 Peak Circle Deltona, FL 32738 s/s Ed Cornwell & Barbara Cornwell Ed Cormwell Barbara Cornwell 1172 Peak Circle Deltona, FL 32738 /s/ Johnny Dollar & Catherine Dollar Johnny Dollar Catherine Dollar 1370 Sonnet Court Deltona, FL 32738 /s/ Howard Ehmer & Nina Ehmer Howard Ehmer Nina Ehmer 1081 Anza Court, Deltona, FL 32738 /s/ Stacey (Dib) Eslaquit Stacey Eslaquit ‘ 1490 Amy Circle Deltona, FL 32738 /s/ Jim Fiskell & Vickie Fiskell Jim Fiskell Vickie Fiskell 1136 Peak Circle Deltona, FL 32738° /s/ Marianne Foley Marianne Foley 950 Watt Circle Deltona, FL 32738 /s/ Francell Frei Francell Frei 1080 Peak Circle Deltona, FL 32738 /s/ Brent Hathaway & Lani Hathaway Brent Hathaway Lani Hathaway 1036 Lyric Dr. Deltona, FL 32738 /s/ Walter M. Haynes & Christine C. Haynes Walter M. Haynes Christine C. Haynes 1410 Sonnet Court Deltona, FL 32738 /s/ David Hester & Christy Hester David Hester Christy Hester 1144 Peak Circle Deltona, FL 32738 /s/ Mike Hollingsworth & Lori Hollingsworth Mike Hollingsworth Lori Hollingsworth 2047 Van Orman Dr. Deltona, FL 32725 !s/ Richard Kenney . Richard Kenney 2633 Treehaven Dr. Deltona, FL 32738 Is/ Phillip Lott . Phillip Lott 948 North Watt Circle Deltona, FL 32738-7919 /s/ Walter Lott & Lorraine Lott Walter Lott : Lorraine Lott 1413 Golfview Dr. Daytona Beach, FL 32114 /s/ Debbie Low & Joseph Low Debbie Low Joseph Low 1056 Peak Circle Deltona, FL 32738 /s/ Bennie Marsala & Kathy Marsala Bennie Marsala Kathy Marsala 945 Watt Circle Deltona, FL 32737 /s/ Bart McCullen Bart McCullen 1536 Amy Circle Deltona, FL. 32738 /s/ Denise Morlen Denise Morlen 1360 Sonnet Court Deltona, FL 32738 /s/ Charles Mott Charles Mott 1180 Peak Circle Deltona, FL 32738 /s/ Mark Nagy & Barbara Nagy Mark Nagy Barbara Nagy 1070 Anza Court Deltona, FL 32738 /s/ James Pavlik James Pavlik 2572 Travida Dr. Deltona, FL 32738 /s/ John Rabbit John Rabbit 2872 Earlshire Ct. Deltona, FL 32738 /s/ Allen Reed & Kristyne Reed Allen Reed Kristyne Reed 1391 Sonnet Court Deltona, FL 32738 /s/ David Ribot David Ribot 1580 Amy Circle, Deltona, FL 32738 /s/ Joseph Schell Joseph Schell 1072 Peak Circle Deltona, FL 32738 /s/ Russell Smith Russell Smith 970 Peru Court Deltona, FL 32738 /s/ Len Solano & Dina Solano Len Solano Dina Solano 1162 Peak Circle, Deltona, FL 32738 /s/ Richard Steele Richard Steele 961 Peru Court Deltona, FL 32738 /s/ Ted Sullivan & Carol Sullivan Ted Sullivan Carol Sullivan 1489 Timbercrest Dr. Deltona, FL 327838 /s/ Rachel Sterrett Rachel Sterrett 2880 Earlshire Ct. Deltona, FL 32738 /s/ Kelly White & Joseph White Kelly White . Joseph White 997 North Dean Circle Deltona, FL 32738 /s/ Russell Soucy Russell Soucy 2498 Weatherford Drive Deltona, FL 32738 Dp w ST. JOHNS RIVER WATER MANAGEMENT DISTRICT ST. JOHNS RIVER WATER MANAGEMENT DISTRICT 1:10 pm. STEVE SPRATT, ét. al., DEC 21 2005 Lb Petitioners, . ; PALATKA, FLORIDA . DISTRICT CLERK v. DOAH Case Nos. 05-3728 through 05-3765 and 05-3816 ST. JOHNS RIVER WATER — MANAGEMENT DISTRICT and CITY OF DELTONA, Respondents. RESPONDENT, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT'S ee eens _eeeeeeeeeeesSl RESPONSE TO AMENDED PETITIONERS’ EXCEPTIONS TO RECOMMENDED ORDER COMES NOW, Respondent, St. Johns River Water Management District (“District”), pursuant to Rule 28-106.217(2), Florida Administrative Code (F.A.C.), by and through its- undersigned attorney, and files this response. to Petitioners’ Exceptions to the Recommended Order (“R.O.") entered by the Administrative Law Judge (ALu) in Division of Administrative Hearings (DOAH) Case Nos. 05-3728 through 05-3765 and 05-3816, and states as follows: BACKGROUND 1. On August 11, 2005, the District issued an Emergency Order (District F.O.R. 2005-51) to Respondent, CITY OF DELTONA ("Deltona") authorizing Deltona to temporarily operate the Lake Doyle to Lake Bethel Emergency Overflow Interconnect System (“System”) and to delay the construction of the brick and mortar plug in the Lake Doyle weir structure outfall pipe. 2. On September 13, 2005, the District's Governing Board issued an Order concurring with Emergency Order 2005-51, 3. The District received 38 petitions from .56 petitioners challenging Emergency Order 2005-51 and requesting an administrative hearing. All petitions were referred to the Division of Administrative Hearings (DOAH) and assigned DOAH Case Nos. 05-3728 through 05-3765 and 05-3816. 4. The final hearing in the above-styled cases was scheduled for November 16-18, 2005. (Second Order to Show Cause at 2.) Additionally, the Secorid Order to Show Cause ordered that: ... the parties shall show cause in writing (i.e., file a written explanation) why the final hearing being scheduled in these cases on November 16-18, 2005, with the effort and expense that would entail, should not be instead be canceled, and the cases placed in abeyance until the agency actions at issue expire by their own terms on November 30, 2005, and the cases become subject to dismissal as being moot. (id.) 5. The Respondents, Deltona and the District, separately, filed Responses to the Second Order to Show Cause, concurring with the ALJ. Barbara Ash, Phillip Lot and Marianne Foley, were the only Petitioners to file Responses to the Second Order to Show Cause indicating their opposition to dismissal of the cases as moot upon ‘expiration of Emergency Order 2005-51. Further, Petitioners Lott and Foley indicated in their Joint Response they would not be available or prepared for the final hearing scheduled to begin November 16, 2005. The remaining 53: Petitioners did not file responses to the Second Order to Show Cause. 6. On November B, 2005, the ALJ entered an Order canceling the scheduled ‘final hearing, and placing the cases in abeyance until expiration of Emergency Order 2005-51 on November 30, 2005. (See Order Canceling Hearing And Placing Cases in Abeyance.) . 7. On November 16, 2005, Petitioner Barbara Ash filed a document titled “Joint Pleadings By All Petitioners’ with DOAH, ostensibly Petitioner Ash was requesting the ALJ to reconsider the Order canceling the scheduled hearing and placing the cases in abeyance. (See Joint Pleadings By All Petitioners.) 8. On December 1, 2005, the ALJ entered an order titled “Order Closing . Files” that considered the Order Canceling Hearing and Placing the Case in Abeyance? together with the Joint Pleadings By All Petitioners. The Order Closing Files ordered the dismissal of the cases as moot and closed the DOAH files. Since the Order Closing _ Files did not dismiss Petitioners’ cases outright, the Order Closing Files is actually an order recommending thai the District dismiss the cases as moot, and any exceptions should be directed at the ALJ's conclusion that the cases are moot and should be dismissed. The Order Closing Files will hereafter be referred to as the “Recommended Order.” See New v. Dep't of Banking and Finance, 554 So.2d 1203, 1206-1207 (Fla. 1* DCA 1989). 9. In these cases, no evidentiary hearing was held. The Order Closing Files contains only the ALJ's conclusions of law based on the pleadings of record. " Petitioner Ash claimed tc be acting as a qualified representative on behalf of all Petitioners and filed the pleading; however, Petitioner Ash was not qualified by the Court to be a qualified representative in this matter. : ? Consideration of the Order Canceling Hearing And Placing Case In Abeyance should be deemed to inciude-the underlying Orders to Show Gause and Responses thereto. 10. On December 13, 2005, Petitioner Phillip Lott filed, via email, “Petitioner's Joint Exceptions To Recommended Order” (“Joint Exceptions”) with the District Clerk. The Joint Exceptions failed to include a certificate of service indicating copies had been __ furnished to all other parties as required by Rule 28-106.104(4), FAC, 11. On December 16, 2005, Petitioner Phillip Lott filed, via email, “Amended Exceptions to Recommended Order” (“Amended Exceptions”) with the District Clerk. The Amended Exceptions were identical in substance to the Joint Exceptions previously filed. While there was a certificate of service included as part of the Amended Exceptions, the certificate of service itself was not in compliance with Rule 28- 106.104(4), F.A.C., in that it did not indicate copies had been furnished to aiff other parties, notably, the Respondent, City of Deltona was not included on the service list. Regardless, District staff considers the Amended Exceptions To Recommended Order filed by Petitioner Phillip Lott on December 16, 2005, as the Exceptions to which this response is directed. . RESPONSE TO PETITIONERS EXCEPTIONS 12. On the face of the pleadings, the Petitioners have not complied with §120.57(1)(k), Fla. Stat. Petitioners’ exceptions fail to clearly identify the disputed portion of the Recommended Order by page number or paragraph and fail to identify the legal basis for the exception. See § 120.57(1)(k), Fla. Stat. Moreover, the Final Order writer in this matter, Vance Kidder, specifically made Petitioners aware of this statutory requirement. In Mr. Kidder’s letter to Petitioners dated, December 6, 2005, he stated, 3 A side-by-side comparison of both documents was made and the only difference noted was the inclusion of a certificate of service. ‘[y]ou may file exceptions to the Recommended Order pursuant to § 120. 87(1)(k), Fla. Stat. (Fla. Stat). If you do file exceptions, Please remember that § 120. 57(1 Xk), Fla, Stat., provides that ‘Tajn agency need not rule on an exception that does not clearly identify the disputed portion of the Recommended Order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” 13. Petitioners’ Exceptions fail to clearly identify the disputed portion of the - Recommended Order by page number or Paragraph and fail to identify the legal basis for the exception. Thus, the Governing Board need noi rule on these exceptions. See § 120.57(1)(k) Fla. Stat. However, in an abundance of caution, counsel for District staff will respond to Petitioners’ Exceptions, by liberally construing them as disputing the entire Recommended Order.. It appears Petitioners tegal bases for the Exceptions are: 1. Dismissing the cases as moot prohibits any challenge to an Emergency Order issued by the District, which has a duration of six (6) months or less, 2, There are still unresolved issues, therefore, the cases cannot be considered moot. 3, Canceling the final hearing and placing the cases in abeyance was premature, as the Emergency Order could ‘have been modified or extended. 4. The cases should have been heard because the issues are likely to recur and. are of great public importance. 14, Petitioners filed unnumbered exceptions to the Recommended Order, therefore, in this Response, references for each exception are made to relevant Paragraphs which have been hand numbered and the Amended Exceptions have been attached hereto as Exhibit “A”, Exception No. 1 15. Petitioners take exception to dismissal of the cases as moot, contending such a dismissal would mean “any emergency order made by any Agency of six months or less is not subject to public scrutiny and not subject to the laws of the State of Florida.” See Amended Exceptions at ] 1. 16. - An administrative hearing is not the exclusive remedy available to Petitioners. Pursuant to section 120.68, Florida Statutes, a person who is adversely affected by final District action may seek review of the action in the District Court of Appeal by filing a Notice of Appeal pursuant to the Florida Rules of Appellate Procedure © within 30 days of the rendering of the final District action. See § 120.68 Fla. Stat. Additionally, a party to a proceeding before the District who claims that a District Order is inconsistent with the provisions and purposes of chapter 373, Florida Statutes, may seek review of the Order pursuant to section 373.114, Florida Statutes, by the Florida Land and Water Adjudicatory 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 Order within 20 days of the rendering of the District Order. See § 373.114, Fla. Stat. Lastly, Petitioners have the option of seeking relief outside of _the administrative process. Moreover, under the current proceeding, Petitioners could have attempted to factually establish the absence of mootness but failed to do so. For these reasons, Petitioners’ exception should be rejected. . 17. Petitioners appear to argue there are still unresolved issues; therefore, the cases cannot be considered moot. See generally Amended Exceptions. 18. The Florida Supreme Court has held; “[ajn issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is ‘moot when it presents no aciual controversy or when the issues have ceased to exist. A moot case will generally be dismissed.” Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (citations omitted). 19. Petitioners seem to argue there are numerous controversies surrounding the construction and operation of the Lake Doyle to Lake Bethel Emergency Overflow Interconnect System, therefore, based on the totality of circumstances and the controversial history of the System the cases currently before DOAH should not be dismissed as moot. See generally Amended Exceptions. 20. ‘Petitioners current challenge is to Emergency Order 2005-51, thus, the only issue before the Court was Emergency Order 2005-51. Other issues with regard to the construction of the System and past Emergency Orders are not at issue in these cases. Moreover, the issuance of District Environmental Resource Permit (ERP) number 4-127-87817-1 and the issuance of Emergency Order 2003-38 were challenged and properly adjudicated. Thus, the circumstances, facts, and law surrounding ERP 4-— 1 27-87817-1 and Emergency Order 2003-38 are not Properly at issue in this proceeding. 21. The completion of the challenged activity. moots the administrative proceeding; in this case the expiration of Emergency Order 2005-51 is the completion of the activity. See Manasaota-88: Inc. v. Agrico Chemical Company, 576 So.2d 781 (Fla. 2d DCA 1991). For these reasons, Petitioners’ exception should be rejected. Exception No. 3 22. Petitioners further argue, that while on its face the stated expiration of Emergency Order 2005-51 was November 30, 2005, however, this date could have been extended. See Amended Exceptions at §[ 5. 23, Petitioners are correct; Emergency Order 2005-51 stated the Order, “... shall expire November 30, 2005, unless modified or extended by further Order.” . See Emergency Order 2005-51 at 4123. However, the fact of the matter is Emergency Order . 2005-51 was not extended or modified and did expire on November 30, 2005. Moreover, the ALJ considered this argument and as a matter of law concluded the Emergency Order was not extended nor could it be extended while DOAH had jurisdiction of the matter. As explained in the Order Closing Files, “[o]ne concern... is that the agency actions at issue in this case would not expire by their own terms on November 30, 2005, but would be ‘modified or extended by further Order.’ . . .First, there is no indication that this has happened. Second, the St. Johns River Water Management District would not have had jurisdiction to do so in this case since the ‘referring agency shall take no further action with respect to a proceeding under s. 120.57(1), except as a party litigant, as long as the division [of administrative hearings] has jurisdiction over the proceeding under s. 120.57(1).’ § 120.569(2)(a), Fla. Stat. (2004).”. See Order Closing Files at endnote 2. For these reasons, Petitioners’ exception should be rejected. Exception No. 4 24. Petitioners take exception to dismissal of the cases as moot, and argue even if the issues were moot the cases should have been heard since the issues are likely to recur and are of great importance. See Amended Exceptions at ]] 2 and 15. 25. A case is "moot" when it presents no actual controversy or when the issues have ceased to exist. Black's Law Dictionary 1008 (6th ed. 1990). A moot case generally will be dismissed. Florida courts recognize at least three instances in which an otheiwise moot case will not be dismissed; when the questions raised are of great public importance or are likely to recur, and if collateral legal consequences that affect the rights of a party flow from the issue to be determined. See Holly v. Auld, 450 So.2d 217 (Fla.1984) and Keezel v, State, 358 So.2d 247 (Fla. 4th DCA 1978). 26. The ALJ concluded, “... the agency actions at issue are premised on the 2005 hurricane season. Another such request is not likely; nor can it be presumed that another request on that premise will be granted by the St. Johns River Water Management District . . . See Order Canceling Hearing And Placing Cases in Abeyance at 2. Further, the ALJ indicated the assertion of the great public importance exception fails for the same reason, in that, “... the agency's justification for its actions at issue no longer would remain of ‘great public importance’ once the agency actions expire by their own terms.” Id. at 3. For these reasons, Petitioners’ exception should be rejected. Exceptions Should Be Rejected 27. Petitioners’ exceptions fail to clearly identify the disputed portion of the Recommended Order by Page number or paragraph and fail to identity the legal basis for the exception. Thus, the District need not rule on these exceptions. To the extent a party fails io file written exceptions to a recommended order regarding specific issues, the party has waived such specific objections. Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1 DCA 1991). 28. ‘Finally, the determination of whether this proceeding is legally moot is a determination outside the substantive jurisdiction of the District's Governing Board. See Deep Lagoon Boat Club, Lid. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001) (DEP - lacked substantive jurisdiction to overrule the ALJ’s determination of whether collateral estoppel limited the petitioner's objections and review of the secondary impacts of the © proposed stormwater system.) Pursuant to section 120.57(1)(1), Fla. Stat., "[t]he agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction.” See § 120.57(1)(I), F.S. Clarification to the Record 29. ‘District staff believes statements in the Amended Exceptions that, while not considered exceptions, should be clarified for the record, 30. Petitioners state, “[alll of our petitions were found to have merit.” See Amended Exceptions at ] 1. Petitioners’ petitions were referred to DOAH because they substantially complied with Rule 28-106.201(2), F.A.C., and sections 120.54(5)(b)4. and 120.569(2)(c), Fla. Stat., none of which address the merits of a petition. Moreover, the Notice of Referral filed by the District stated, “[tlhe forwarding of this Petition... is nota waiver of this agency's right to assert the existence of material defects in any document filed.” See Notice of Referral. 10 - 31. Petitioners state the Lake Doyle to Lake Bethel Emergency Overflow interconnect System “remains unpermitted,” See generaily Amended Exceptions at 13. The District issued ERP 4-127-87187-1 to the City of Deltona on July 13, 2005, authorizing the construction and operation’ of the System, 32. Petitioners state ERP application no. 4-127-87817-2 is being challenged in an administrative hearing on January 26, 2006. See Amended Exceptions’ at J] 4. Petitioners Phillip Lott and Steven Spratt have challenged the issuance of ERP application no. 40-127-97380-1, Drysdale Drive/Chapel Drive drainage improvements, and it is scheduled for administrative hearing on January 26, 2006. However, this project, while the City of Deltona is the applicant, is not related to the Lake Doyle to Lake Bethel Emergency Overflow Interconnect System. WHEREFORE, counsel for District staff respectfully requests that the Governing Board enter a Final Order rejecting Petitioners’ Amended Exceptions and adopting the recommendation of the ALJ to dismiss Petitioners’ cases as legally moot. RESPECTFULLY SUBMITTED on this 215 day of December 2005. KEALEY A. WEST: Fla. Bar No. 0611614 Attorney for Respondent St. Johns River Water Management District 4049 Reid Street : Palatka, FL 324 77-2529 (386) 312-2317 ae ‘The Operation of the system was limited to the pre-construction flow pattern. Vi WHSID LOH sId Vatuold “VaLVivd |. got: g, 030 STATE OF FLORIDA - 14:500M @ ‘DIVISION OF ADMINISTRATIVE HEARINGS = dSiSaSSuniShhor us ’. STEVE SPRATT, et al. ’ November 13, 2005 - ‘Petitioners, . Case Nos. 05-3728 Vs. through 05-3765 . CITY OF DELTONA and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents ) ) ) ) ) :) and 05-3816 ) . ) ) ) ) AMENDED PETITIONER'S EXCEPTIONS TO RECOMMENDED ORDER Comes now all Petitioner’s pursuant to F.S. 28-106.209 and hereby respond to SJIRWMD, Vance Kidder, Assistant General Counsel and to DOAH Administrative Law Judge, J. Lawrence Johnston’s ORDER ‘CLOSING FILES AND PLACING CASES IN . @ ABEYANCE AND FURTHER DISMISSED ORDER AS MOOT, done and ordered this 1" day of December, 2005. In effect, the Orders taken together are the “Recommended Order”. a Petitioners received via US. Mail the ORDERS on December 1“ and December 8th, 2005, and respond as taxpayers, property owners and citizens all concerned about the environment in which we live. Finding of facts ca the issues of the City of Deltona’s request for an Environmental Resource Permit to construct (already constructed structures) that three times have not met the District’s qualifications for complying with the permit terms, instead three Emergency Orders have been issued. The terms of same have also been ignored. “L. Petitioners believe that by and through the ORDER the ALJ has reduced the statutes governing Administrative Hearings to a farce, and that his ORDER in effect says that any emergency order made by any Agency of'six months or less is not subject to public scrutiny and not subject to the laws of the State of Florida. We, the Petitioners (taxpayers, affected homeowners and concerned citizens all) filed our challenges @ EXHIBIT "A" ‘ (Petitions) within the legal time frame dictated by the Florida Statutes, All of our - petitions were found to have merit. The ORDER is a judicial mis-interpretation of the legislature’s intent, when it created the statutes which govern Administrative challenges in Florida. The ORDER appears to be indicative of judicial bias and judicial activism and should be recanted, ; a, Our cases should not have been placed i in Abeyance, b but should have been acted upon immediately to stop the loss of 1 cfs = 450 gallons per minute = 27, :000 gallons per hour = 648,000 gallons of fresh water daily which is being artificially drained from the Lake Theresa Basin where we live. The water is exiting the Basin. and contributing to * downstream flooding in clear violation of not only the construction permit which called for the structure to be sealed, but also of the Emergency Order that we challenge through | these petitions. The matter is of great importance to those who live i in the Lake Theresa Basin and those living downstream where the conveyance empties into the St. Johns River at Lake Monroe. ; 3. _ The Administrative Hearing was requested because Emergency Order SIRWMD F.O.R, 2005-51 (Lake Doyle to Lake Bethel Emergency Overflow Interconnection; THE BIG DITCH) allowed operation of an artificial drainage system which remains , unpermitted but has been in use almost constantly since its construction under a similar Emergency Order issued in March of 2003. Now, F.O.R. 2005-51 did not state that it was a “Final Order.” The Emergency Order was requested on July 13, 2005, it was issued on August 11, 2005, and the SIRWMD Governing Board concurred on September 13, 2005, all the while the system was in operation. The Emergency Order was never classified as a Final Order by the Agency (pursuant to Section 120, 569(2)(n) F.S. An adequate remedy was not received and should not be considered moot. The Emergency Order was issued on the date that the Construction Permit for the system called for a permanent 8 inch thick brick and mortar plug to be installed, 1. To this date the plug has not-been installed voiding the Emergency Order terms Page 4 No. 17. By December 1, 2005 the variable weir structure outfall Pipe shall be plugged as. indicated in condition 37 of permit number 4-127-87817-1, unless superseded by the issuance of a permit modification, ; a. . Recommended Order May 27, 2005, Page 8, No. 15, as an added assurance, the city proposes to place a brick and mortar plug in the Lake Doyle weir structuie outfall pipe to prevent any discharge from the weir. . 7 b. The City Engineer’s drawing dated February 25, 2005, indicates to “plug pipe end with. brick and mortar NOTE: use closure module brick (4°x4"x8”) or similar.” Ms. Kealey. A.West, Counsél for the District and the City of Deltona gave unequivocal testimony that . the system would be plugged so that no water would flow through the weir at Lake ‘Doyle. The Final Order stated “The variable weir structure in Lake Doyle shall remain closed and within 30 days of permit issuance, the permittee shall (1) complete construction of the brick and mortar plug as depicted on the plans dated February 25, 2005, and (2) provide the District certification from a professional engineer that the plug has been constructed in accordance with the plans dated February 25, 2005.” The plug was not installed on December 1, 2005, in accordance with the Emergency Order nor | materials ordered for the construction of said plug and on the final date of August 11, 2005, District ordered an Emergency Order F.O.R. No. 2005-51 changed the established . elevation level a difference of one-half a foot from 24.5 to 24.0 feet NGVD. c, The project is in violation conclusion of law 40C-4,301 (1) (i) F.A.C. will be capable based on generally accepted engineering and scientific principles of being performed and functioning as proposed. The weir gates in accordance with the drawings of February 25" 2005 cannot be completely close. The bottom elevation is 15 feet; bottom elevation of the pipe is 21 feet a difference of 6 feet City engineer’s diagram shows gates to be four feet 8 inches the manufacturer of the Gator SG-15 sluice gates state they are 4 feet therefore there is a discrepancy either way they still cannot be closed completely. d. District Proposed recommended order Page 25 No. 90, evidence shows the city has provided reasonable assurance of project as it is based on generally accepted engineering and scientific practices and is capable of functioning as proposed therefore the project meets paragraph 40-C.-4.301 (1) (i) District’s Proposed Recommended Order April 29, 2005, Page 14, E. No. 51, Based on the information provided by the City and general engineering principles, the system is capable of functioning as proposed (Tr. at 458.) above proof these are false, as the system has not been completely closed and common sense looking at the drawings prove that conclusion. e. On Tuesday January 13, 2004, Barbara Ash appeared before the Governing Board informing t the system could not be closed, it was confirmed by SIRWMAD’ Attdiney Thomas Mayton’s statement that 1] gallon of water per minute flows from the system. * f. On Sunday, September 19, Greg Fox of Channel 2 News “WESH” and camera man confirmed that with the gates closed water still flowed through the weit S¥stein. ‘Pictiireg provided i in correspondence to’ Judge J ohnston asking for Tequest for relief dated - December 1, 2005)-received by the divisiori on December 5, 2005.. g. Also Conclusion of Law 40C-4,301 (1) (d) F.A.C. It will adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters as the fish will be trapped in the pipes.as not being completely sealed. The non | sealing of the pipe will adversely affect the conservation of fish and. wildlife, including ” endangered or threatened species in Rule 40C-4.302 (1)(a)2, F.A.C. 7 h. Recommendations are the facts that the system cannot function within the Conclusion of Law of the F.A.C. listed above. and terms have expired for the Emergency Order. From the time of February 25, 2005, drawing the City knew the pipe was to be plugged total of ten months. From July 12; issuance of the permit a total of 140 days and then the issuance of the Emergency Order August 11,2005 to December'1, 2005, was-111. days all this time the City and District could not comply with the conditions of the emergency order therefore the entire project should be denied, closed and returned to the. original condition. as specified in the Districts recommended and final order the city of Deltona shall plug the overflow weir structure return the downstream conveyance system to the prior condition depicted as existing and cease operating the system these activities should be completed within thirty days of notification by the district. This Was the same order issued from the emergency order F.O.R. No. 2003-38 dated March 25" 2003 > page 4 No.13. and it is with reasonable assurance that the City nor District has not tried to comply with the law. Or Final Order May 27, 2005, page 29 No. 92 ‘the evidence was unequivocal, from both the city and the district, that the system would be plugged so that no water would flow through the weir at Lake Doyle. Also violating Rule 40C-4:751 Enforcement F.A.C. Construction was not completed in accordance with permit, and altered without a-permit; therefore should be denied and restored to its pre-construction condition. ) : The system has been used Since March of 2003 and operated under 3 Emergency ~ Orders and Governor J eb Bush’s Executive Order‘03=60 authorization to open the ditch at — Ledford Drive to relieve flooding for 60 days, District Ex. No. 5, March 31, 2005, not to draw down an entire basin, despite the fact that there has never been any evidence that any emergency actually existed during those two atid a half years. ‘ 7 _ 2, The Emergency Order Page 2, No. 8. the Florida Department of Environmental Protection has listed Lake Monroe as impaired for nutrients. ’ Creating’a new source of nutrient loading will increase the overall nutrient loading to Lake Monroe thereby: contributing to 4 violation of staté water quality standards in this incident since the discharge i is being limited to the minimum needed to alleviate the emergency and is - temporary. Iti is in violation as being extended past the December 1, 2005, date. violating - Rule 40C-4.3 02(1)(a)7(b) F.A.C., project will cause unacceptable cumulative impacis’ upon wetlands and the St. J ohns River in that it will further aggravate the unacceptable phosphorus loading into the St. Johns River. . ; a. Recommended Order May 27, 2005, Page 15 No. 41, water quality i is a concern for the district. Lake.Monroe is included on the Florida Department of Environmental Protection’s verified list of impaired water bodies for nitrogen phosphorus and dissolves oxygen. Water quality data for Lake Monroe indicates the lake has experienced high levels of nitrogen and phosphorus and low levels of dissolved oxygen. © b. District proposed recommended order Page 11 No.33, the system will operate with the overflow structures closed.and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel resulting in no outfall from the Theresa Basin to Lake Monroe and therefore no contribution from'the Lake Theresa Basin of nitrogen and phosphorus loadings to Lake Monroe will occur as a result of this project Tr. at 457: district exhibit No. 38. And Page 11 No. 35, the system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no out fall from the Theresa basin to Lake Monroe therefore, minimum flows establish for surface waters within the Theresa Basin will not be adversely impacted (Tr. at 457: district exhibit No. 38.). c. Rule No. 40C- 4302 (1) (a) 7 (b) F.A.C. the city of Delta’s project has caused unacceptable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate an unacceptable phosphors loading into the St. John’s River. The >-system was niot plugged on December-1; 2005-limiting the: minimumneeded to alleviate ~ the emergency in violation of the Emergency Order page 3 no. 8 and no. 9. 3. Emergency Order page 4 no. 15,-Deltona shall close the system any time the water Staff Report shut-off elevation schedule for Lake Bethel July siroughN November : elevation is 5.0 feet NGVD, District cannot stay consistent with rules, not even with-the cutoff water elevations as changing from 23.5 to 23.9 to 22.1 to 24.5 and 24.0, to name a few. a a. Emergency Order Page 5, No. 20, any activities conducted under this Authorization ‘ must not cause flooding and must be consistent with the terms of this Authorization... b. It is well documented that the St. Johns River floods at 5.8 feet at Stone Island. The system did not get plugged on December 1, 2005, and water is still flowing, the water ; level at Lake Bethel exceeded 6 feet before December 1, 2005, but water is still flowing. c. Recommended Order May 27", 2005, page 12 No. 29, both the city and the district recognized that areas downstream from-the project site, sich as Stone Island and Sanford, have experience flooding in the past in time of high amounts of rainfall. Rule 40C- 4.302(1} (a) F.A.C. Because the city of Deltona’s project is located in, on and over wetlands and other surface waters, the city of Deltona must demonstrate that its proposed activity will not be contrary to the public interest. In conjunction therewith, that petitioner alleges that the proposed activity will adversely affect property. Which there is proof of flooding conditions in Stone Island and i is contrary to the public interest as 39 Petitions have been filed against the project. : d. Rule 40C-4.301 (1)(b) F.A.C. It will and has caused adverse flooding to off site property. Neither the District nor City has enforced the plugging of the pipe by December 1, 2005, to alleviate the flooding condition. City of Deltona’s letter dated July 13" proves that “we can only operate the overflow when Lake Monroe is within the . operating stages specified in our agreements” Reasonable assurance has not been fulfilled to assure the plugging of the pipe therefore not in compliance with the Emergency Order or the Permit. Rule 40C-4.301(1)(a) F.A.C. ii has caused adverse water quantity impacts to receiving waters and adjacent lands. , 4, The Governing Board is violating Florida Statutes 373.036 the governing board shall “give careful consideration to the SE EO SRS AS St and procreation of fish and wildlife. 5. Exception to Recommended Order violation is Rule 40C-4.301(1)( F.As C.it will cause adverse secondary impacts to Water resources iii that it will diminish aquifer” ° recharge. . : ) 6. Exception to Recommended Order violation i is Rule 40C-4. 301(1)¢g) RAC. it will and has impacted the maintenance of surface or groundwater levels. : 7. Also terms of the Technical Staff Report that closed channel gates and riser boards at the Ledford Drive and railroad berm structures, respectively be installed by same date, . August 11, 2005, again no record of material purchased for the construction of same. proving that witli “reasonable assurance” the project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term “emergency” is a result of an immediate danger to the public health, safety, or welfare, but there is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the lakes in the Lake Theresa Basin flooded but the District violated the terms of the construction permit and opened the gates and they remain in full operation until the end of the hurricane season. Rule 40C-4.301 and 4,302 and 40C-4.041(1) F.A.C..Prior to construction, alteration, operation, maintenance, an environmental resource permit must be obtained from the District. Three times this has been avoided by the issuance of the so called Emergency Orders; because of the knowledge of discrepancies in the gate size and knowing they are not capable of functioning correctly. Avoiding the installation of the riser boards per the Technical ‘Staff Report (TSR) therefore not in compliance with the permit terms. i}, 8 Emergency Order No. 3 on July 7" 2005, Deltona submitted an application to modify the above referenced permit (Application No. 4-127-87817-2) to construct five drainage retention/detention areas, to offset the anticipated increases in pollutant loads to Lake Monroe. The permit has not been approved violation 40C-4.041(1) F.A.C. Prior to operation an environmental resource permit must be obtained from the District. This project is being challenged in an Administrative Hearing on January 26, 2006. The - District Handbook 13.9 detention drainage page 13 - 8 and District publication state @ | © “Tétention systems ate close systems constructed so that storm water does not reach natural water bodies.” Objection letters were received by the district for the permit but the district opened the system without a permit allowing retention and natural water. bodies to'flow together into Lake Monroe an impaired water body violatitig 40C-4.041° F.A.C. a permit is required prior to operation. And 40C-4.302(1)(a)7(b), F.A.C. project will cause unexceptionable cumulative impact upon wetlands and the St. John’s River in that it will further aggravate the unacceptable phosphorus loading into the-St. John’s River ; 5, Therefore, exceptions to Recommended Order are necessary to determine whether this cause can be amicably resolved. An adequate remedy was not allowed to be heard and the emergency order was issued on the date the plug was to have been completed, therefore the probable assurance that the plug would be installed was false. The system was operated again without a construction permit and/or operating permit and the same emergency issues keep re occurting when it has not been established that there was an emergency. As you state the agency actions expire by their own terms is not true as the date maybe extended beyond the November 30" date as under. No. 23, Page 5, E.O. and stated in the 2” To Show Cause” ‘unless modified or extended by further Order.’ The District did-not abide by the rules of the permit and have not abided by the Emergency Order terms. The weir system must be modified as it cannot be completely closed in accordance with the February 25, 2005 plans. Violating 40C-4.301(1) (i), F.A.C. Engineering principles of being performed and of functioning as proposed. That was the reason for the installation of the 8” thick brick ani mortar plug greater than a half mile away from the weir structure (3,524 linear feet) as the weir cannot be completely closed. The Petitioners are being denied equal protection of the law and deserve the opportunity to challenge the Emergency Order as the terms were not completed. We were denied the Prehearing Conferences pursuant to 28-106-209 F.S. to discuss possibility of settlement to have the plug installed immediately to stop down stream flooding. Moot is when issues have ceased to exist this is not the case as explained previously emergency issues keep re occurring. We are not receiving fair and impartial handling of the matter. This Project was started under false pretenses and it violated 40C-4.041(1) F.A.C. No _ construction shall begin until a permit is issued. The ERP construction permit No. 4-127-87817-1 approved on July 12, 2005., was violated The Final Order No. 10, Page 12, “The system proposed by the City for. this . ERP will operate with the overflow structures closed and a brick and mortar plugi in the, outfall pipe: to prevent water flow from Lake Doyle'to Lake Bethel.” F. 0. No. 44, pe. 15 - “The system will operate with the overflow structures closed and a brick and mortar plug : in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting i in no outfall from the Theresa Basin to Lake Monroe.” Changed wording of terms unless - : - modified or extended by further Order. Also terms of the Technical Staff’ Report that closed channel gates and riser boards at the Ledford Drive and railroad berm structures, respectively be installed by same date, August 11, 2005, again no record of material . purchased for ihe construction of same proving that with “reasonablé assurance” the ’ ; project will be successfully implemented. The District ordered an emergency order on the final day that construction was to have been completed. District definition of the term . “emergency” is a result of an immediate danger to the public health, safety, or welfare, but there i is no documentation of any person in any danger as emergency vehicles were not needed or called. None of the lakes i in the Lake Theresa Basin flooded but the District violated the terms of thé construction permit and opened ‘the gates and they remain in operation. Operation of the system constitutes a violation of State water quality standards as the receiving water body, Lake Monroe, has been classified as Critically Impaired by the very agency which issues these recurrent emergency orders. Their own Rules and the Florida Statutes allow no new discharge into critically impaired water bodies within the . State of Florida. The District attorneys are violating their Florida Bar Oath “I will not counsel any proceeding which shall appear to me to be unjust.” In their professionalism of ethics they know of the discrepancies, omissions, and errors in quoting the Florida statues and Florida Administrative Codes. : - The District continually is making the same mistakes per their own Mr. Lee Kissick’s statement” Even if you fill a wetland in violation - if you build a project and didn’t get a permit, you’re expected to get an after the fact petmit and then do everything you can in your power after the fact to comply with the rules”. This project was denied twice due to environmental reasons, was initiated again due to Governor Jeb Bush’s: Executive Order 03-60, but the District violated the terms of the Govemor’s s “Executive. Order: District violated a written agreement and project meeting on September 2, 2004: and on September 3, 2004 with project in litigation granted Emergency Order F.O.R... 2004-75-to open the gates ‘without a petmit.- How iniany more objections to Operating te ~~ ue . System are allowed beforé the District takes action to declare'the system closed? . Therefore, all the petitioners on the Service List deserve to have a hearing to learn “why the Emergency Orders were initiated and violated the permit conditions, and the District’s rules, statutes and Florida Administrative Codes when there is not an emergency which is supposedly necessitated by immediate danger. Also to undetstand ‘ working conditions of the system and all conditions of the system ‘should be recorded in one document without discrepancies between the Technical Staff Report, the City’s’ drawings and the Final Order containing further information, and to understand the issuance of unnecessary Emergency Orders. As taxpayers and property owners we should be entitled to learn of all’ conditions and modifications of the system as our property values are negatively impacted and our environment is harmed. And most importantly this system cannot be effectively operated at the time of need, therefore, our cases should not be dismissed and we should be granted the opportunity of justice to be heard or another Judge assigned to the case. And abide by the District Ruling “If the ‘City does not fulfill the permit conditions, the City will be required to plug the overflow weir structure and return the downstream conveyance system to its prior condition within 30 days of notification by the District, RESPECTFULLY SUBMITTED this 15" day of December, 2005 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 15th day of December, 2005, the original of : the foregoing has been furnished to DOAH, at (850) 921-6847, The DeSoto Building, , 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; and that a true and correct copy of the foregoing has been furnished to all parties on the attached SERVICE LIST. SERVICE LIST /s/ Steven L. Spratt Steven L. Spratt 2492 Weatherford Dr., Deltona, FL 32738 s/s Barbara Ash BarbaraAsh 943 South Dean Circle Deltona, FL 32738 s/s Eric Astacio Eric Astacio s/s Jeannette Astacio _ Jeannette Astacio 1401 Sonnet Court Deltona, FL 32738 s/s Gloria Benoit Gloria Benoit 1300 Tartan Ave, Deltona, FL 32738 s/s Roland Beyer & Twila a Beyer Roland Beyer Twila Beyer . 991 North Dean Circle Deltona, FL 32738 /s/ Richard Carroll Richard Carroll 1190 Peak Circle Deltona, FL 32738 s/s Ed Cornwell & Barbara Cornwell Ed Cornwell Barbara Cornwell 1172 Peak Circle Deltona, FL 32738 /s/ Johnny Dollar & Catherine Dollar Johnny Dollar Catherine Dollar 1370 Sonnet Court Deltona, FL 32738 /s/ Howard Ehmer & Nina Ehmer o Howard Ehmer Nina Ehmer 1081 Anza Court, Deltona, FL 32738 /sf Stacey (Dib) Eslaquit ', Stacey Eslaquit 1490 Amy Circle Deltona; FL 32738 ‘s/ Jim Fiskell & Vickie Fiskell Jim Fiskell Vickie Fiskell 1136 Peak Circle | Deltona, FL 32738 ° /s/ Marianne Foley Marianne Foley 950 Watt Circle Deltona, FL 32738 /s/ Francell Frei Francell Frei 1080 Peak Circle Deltona, FL 32738 /s/ Brent Hathaway & Lani Hathaway Brent Hathaway ; Lani Hathaway 1036 Lyric Dr. Deltona, FL 32738 - Isf Walter M. Haynes & Christine C. Haynes Walter M. Haynes Christine C. Haynes 1410 Sonnet Court Deltona, FL 32738 /s! David Hester & Christy Hester David Hester Christy Hester 1144 Peak Circle Deltona, FL 32738 /s/ Mike Hollingsworth & Lori Hollingsworth Mike Hollingsworth Lori Hollingsworth 2047 Van Orman Dr. Deltona, FL 32725 Isf Richard Kenney Richard Kenney 2633 Trechaven Dr. ° Deltona, FL 32738 /s/ Phillip Lott . Phillip Lott : 948 North Watt Circle Deltona, FL 3273 8-7919 /si Walter Lott & Lorraine Lott Walter Lott . : Lorraine Lott 1413 Golfview Dr. Daytona Beach, FL 32114 Is/ Debbie Low & Joseph Low Debbie Low Joseph Low - 1056 Peak Circle Deltona, FL 32738 /s/ Bennie Marsala & Kathy Marsala Bennie Marsala Kathy Marsala . 945 Waitt Circle Deltona, FL 32737 /s/ Bart McCullen Bart McCullen 1536 Amy Circle Deltona, FL 32738 !s/ Denise Morlen Denise Morlen 1360 Sonnet Court Deltona, FL 32738 /s/ Charles Mott Charles Mott 1180 Peak Circle Deltona, FL 32738 ‘s/ Mark Nagy & Barbara Nagy Mark Nagy Barbara Nagy 1070 Anza Court Deltona, FL 32738 /s/ James Pavlik James Pavlik 2572 Travida Dr. Deltona, FL 32738 /s/ John Rabbit John Rabbit 2872 Earlshire Ct, Deltona, FL 32738 /s/ Allen Reed & Kristyne Reed Allen Reed . Kristyne Reed 1391 Sonnet Court Deltona, FL 32738 /s/ David Ribot David Ribot 1580 Amy Circle, Deltona, FL 32738 /s/ Joseph Schell Joseph Schell 1072 Peak Circle Deltona, FL 32738 /s/ Russell Smith Russell Smith 970 Peru Court Deliona, FL 32738 /s/ Len Solano & Dina Solano Len Solano Dina Solano 1162 Peak Circle, Deltona, FL 32738 /s/ Richard Steele Richard Steele 961 Peru Court ’ Deltona, FL 32738 /s| Ted Sullivan & Carol Sullivan ‘Ted Sullivan Carol Sullivan 1489 Timbercrest Dr. Deltona, FL 327838 "fs! Rachel Sterrett Rachel Sterrett . 2880 Earishire Ct. Deltona, FL 32738 Is! Kelly White & Joseph White Kelly. White . - Joseph White 997 North Dean Circle Deltona, FL 32738 /s/ Russell Soucy Russell Soucy 2498 Weatherford Drive Deltona, FL 32738 — ! HEREBY CERTIFY that the original of the foregoing has been Smith, 970 Pery Court, Deltona F} 32738; Len and Dina Solano, 1162 Peak Cirlce, 4S/ Kealey A. West “‘KEALEY A. WEST ST. JO} HNS RIVER wa: Et MANA ratea GEMENT STRICT ST. JOHNS RIVER WATER MANAGEMENT DISTRI STEVE SPRATT, et. al., PALATKA, FlOniDa WW DISTRICT CLER Petitioners, SSS Vv. o , DOAH Case Nos. 05-3728 , through 05-3765 and 05-3816 ST. JOHNS RIVER WATER ; . MANAGEMENT DISTRICT and CITY OF DELTONA, Respondents. To RESPONDENT, CITY OF DELTONA’'S RESPONSE TO AMENDED PETITIONERS’ EXCEPTIONS TO RECOMMENDED ORDER ENDED ORDER " COMES’ Now, Respondent, City of Deltona ("City"), pursuant to Rule 28. ("R.O.") entered by the Administrative Law Judge (ALJ) in Division of Administrative Hearings (DOAH) Case Nos. 05-3728 through 05-3765 and 05-3816, and States as follows: | 1, On July 13, 2005, the District issued ERP 4-127-87187-1 to the City of Deltona, authorizing the construction and operation of the Lake Doyle to Lake Bethel Emergency Overflow Interconnect System (“System”), 2. On August 11 , 2005, the District issued an Emergency Order (District F.O.R, 2005-51) authorizing the City to temporarily Operate the System and to delay the 3. On September 13, 2005, the St. Johns River Water Management District's (“District”) Governing Board issued an Order concurring with Emergency Order 2005-51. 4, The District received petitions challenging Emergency Order 2005-51 and requesting an administrative hearing: All petitions were’ referred to the Division of Administrative Hearings (DOAH) and assigned DOAH Case Nos. 05-3728 through 05- 3765 and 05-3816. #5. The final hearing in the above-styled cases was scheduled for November 16-18, 2005. 6. On October 25, 2005, a Second Order to Show Cause was issued which ordered that: . .. within seven days from this date, the parties shall show cause in writing (i-e., file a written explanation) why the final hearing being scheduled in these cases on November 16-18, . 2005, with the effort and expense that would entail, should not be instead canceled, and the cases placed in abeyance until the agency actions at issue expire by their own terms on November 30, 2005, and the cases become subject to dismissal as being moot. 7. The Respondents, City and the District, separately, filed timely Responses to the Second Order to Show Cause, concurring with the ALJ. 8. On November 8, 2005, the ALJ entered an Order canceling the scheduled final hearing, and placing the cases in abeyance until expiration of Emergency Order 2005-51 on November 30, 2005. 9. On November 16, 2005, Petitioner Barbara Ash filed a document titled “Joint Pleadings By All Petitioners” with DOAH requesting the ALJ to reconsider the Order canceling the schedulediiiearing and placing the cases in abeyance. She signed “the document as a qualified representative, Petitioner Barbara Ash is the only Petitioner to have signed this document. 10. Since the City is unaware of any written authorization by any of the Petitioners’ authorizing Barbara Ash to be their qualified representative in this matter concerning the Emergency Order and a written request has not been ‘filed with the presiding officer Seeking Barbara Ash to represent them as their qualified representative - 4S required by Rule 28-106.106 F.A.C., Petitioner Barbara Ash's “Joint Pleadings By All Petitioners” should be Considered a representation of herself and not a pleading by ali Petitioners. . 11. On December 1, 2005, the ALJ entered an order titled “Order Closing Files” that ordered the dismissal of the Cases as moot and.closed the DOAH files. 12. in these Cases, no evidentiary hearing was held. The Order Closing Files contains only the ALJ's conclusions of law-based on the pleadings of record, 13. On December 16, 2005, Petitioner Phillip Lott filed, via email, “Amended Exceptions to Recommended Order” (“Amended Exceptions”) with the District - Clerk. While there was a certificate of service included as part of the Amended Exceptions, the certificate of service itself was not in compliance with Rule 28-106.104(4), F.A.C., in that the City was not included on the service list. 14 Pursuant to Rule 28-106.110, F.A.C. “unless the’ Presiding officer otherwise orders, every pleading and every other paper filed ina Proceeding, except applications for witness subpoenas, shall be served on each -party or the party's representative at the last address of record,” Petitioners have repeatedly failed to serve the City with papers which are filed with this court concerning this matter. 15. The Petitioner has failed to comply with §120.57(1)(k), Fla. Stat. because ) Petitioner's exceptions fail to clearly identify the disputed portion of the Recommended ; Order by page number or paragraph and fail to identify the legal basis for the exception. Thus, the District need not rule on these exceptions. To the extent @ party fails to file written exceptions to a recommended order regarding specific issues, the. party has waived such specific objections. Environmental: Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 15' DCA 1991). MOOTNESS ISSUE 16. The Florida Supreme Court has held that a moot case will generally be’ dismissed. Godwin v. State; 593 So.2d 211, 212 (Fla.1992). A case is rendered moot when it no longer presents an actual controversy or when the issues have. ceased io exist because they have been “so fully resolved that a judicial determination can have no actual effect.” Id. at 212 (citing Dehoft vy. Imeson, 153 Fla. 553, 15 So, 2d 258 (1943); Black's Law Dictionary 1008 (6th ed.1990)); see also Martinez v. Singletary, 691 So.2d 537 (Fla. ist DCA 1997). 17. The completion of the challenged activity moots the administrative proceeding; in this case the expiration of Emergency Order 2005-51 is the completion of the activity. See Manasaota-88, Inc. v. Agrico Chemical Company, 576 So.2d 781. (Fla. 2d DCA 1991). "Mootness” occurs when issues presented are no longer live, WFTV, Inc. v. Robbins, 625 So.2d 9414, (Fla. App. 4 Dist. 1993). 18. Emergency Order 2005-51 stated that it, ". .. shall expire November 30, 2005, unless modified or extended by further Order.” Emergency Order 2005-51 was ° not extended or modified and did expire on November 30, 2005. Any attempt by a mere colorable dispute to obtain opinion of the court upon a question of law, where in fact there is no real controversy, is not. permitted. Lieber v. Lieber, 40 $0.2d 111, Fla,, 1949, - . 19, Florida courts recognize at least three instances in which an otherwise moot case will ‘not be dismissed; when the questions raised are of great public . importance or are likely to recur, and jf collateral legal consequences that affect the rights of a party flow from the issue to be determined. See Holly v. Auld d, 450 So.2d 217 (Fla.1984) and Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978). 20. The ALJ concluded, “.. . the agency actions at issue are premised on the 2005 hurricane season. Another such request is not likely; nor can it be presumed that another request on that premise will be . granted by the St. Johns River Water ” Management District . . .". Further, the ALJ indicated the assertion of the great public importance exception fails for the same reason, in that, ". . . the agency's justification for its actions at issue no longer would remain of ‘great public importance’ once the agency actions expire by their own terms.” 22. Finally, the determination of whether this proceeding is legally moot is a determination outside the substantive jurisdiction of the District’s Governing Board. See Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001) (DEP lacked substantive jurisdiction to overrule the ALJ’s determination of whether collateral: estoppel limited the petitioner's objections and review of the secondary impacts of the Proposed stormwater systeri.) Pursuant to Section 120.57(1)(i), Fla, Stat., "[t]he agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over whi substantive jurisdiction.” See § 120.57(1)(1), F.S. _ WHEREFORE, counsel for the City respectfully requests that the Governing Board enter a Final Order rejecting Petitioners’ Amended Exceptions and adopting the recommendation of the ALJ to dismiss Petitioners’ cases as legally moot. RESPECTFULLY SUBMITTED on this 27" day of December 2005. 4s/ George Trovaté George Trovato Fla. Bar No. 0786241 - . Attorney for Respondent City of Deltona .2345 Providence Blvd Deltona, FL, 32725 (386)-561-2100 CERTIFICATE OF SERVICE | HEREBY CERTIFY that the original of the foregoing has been ele ronically filed with the District Clerk for St. Johns River Water Management District; and ‘that a true and .correct copy of the foregoing was furnished by U. S. Mail to: KEALEY “A. WEST, Esquire, St. Johns River Water Management District, 4049 Reid Sireet,-Palatka FL 32177; Barbara Ash, 943-S. Dean Circle, Deltona. FI. 32738; Eric and Jeannette Astacio, 1401 Sonnet Court, Deltona FL 32738; Gloria Benoit, 1300 Tartan Avenue, Deltona FL 32738; Twila and Ronald Beyer, 991 N. Dean Circle, Deltona FL 32738; Richard Carroll, 1190 Peak Circle, Deltona FI 32738; Roy Clelland, 985 S. Dean Circle, Deltona FI 32738; Ed and Barbara Comwell, 1172 ‘Peak Circle, Deltona FI 32738; Johnny and Catherine Dollar, 1370 Sonnet Court, Deltona FI 32738; Howard and Nina, Ehmer, 1081 Anza Court, Deltona Fl 32738; Stacey Eslaquit, 1490 Amy Circle, Deltona FL. 32738; Jim and Vickie. Fiskell, 1136 Peak Circle, Deltona Fl 32738; Marianne Foley, 950 Watt Circle, Deltona Fl 32738; Francell Frei, 1080 Peak Circle, Deltona FI_ 32738; Brent and - Lani. Hathaway, 1036 Lyric Drive, Deltona FI 32738; Walter and Christine Haynes, 1410. Sonnet Court, Deltona Fl 32738; David and Christy Hester, 1144 Peak Circle, Deltona FI 32738; Mike and Lori Hollingsworth; 2047 Vanorman Drive, Deltona FI 32725; Richard Kenney, 2633 Treehaven Drive, Deltona FL 32738; Phillip Lott, 948 N. Watt Circle, Deltona FI 32738; Walter and Lorraine Lott, 1413 Golfview Drive; Daytona Beach FL 32114; Debbie and Joseph Low, 1056 Peak Circle, Deltona FI 32738; Bennie and Kathy Marsala, 945 Watt Circle, Deltona FI 32738; Bart McCullen, 1536 Amy Circle, Deltona FI 32738; Denise Morlen, 1360 Sonnet Court, Deltona FI 32738; Charles Mott, 1180 Peak Circle, Deltona Fl 32738; Mark and Barbara Nagy, 1070 Anza Court, Deltona FI 32738; James Pavlik, 2572 Travida Drive, Deltona Fl 32738; John Rabbitt, 2872 Earishire Court, Deltona Fl 32738; Allen and Kristyne Reed, 1391 Sonnet Court, Deltona Fl 32725; David Ribot, 1580 Amy Circle, Deltona Fl 32738; Joseph Schell, 1072 Peak Circle, Deltona FL 32738; Russell Smith, 970 Peru Court, Deltona FI 32738; Len and Dina Solano, 1162 Peak Cirlce, Deltona Fl 32738; Russell Soucy, 2498 Weatherford Drive, Deltona FL 32738; Steve Spratt, 2492 Weatherford Drive, Deltona Fl 32738; Richard Steele, 961 Peru Court, Deltona Fl 32738; Rachel Sterrett, 2880 Earishire Court, Deltona Fl 32738; Ted and Carol Sullivan, 1489 Timbercrest Drive, Deltona F] 32738; Kelly and Joseph White, 997 N, Dean Circle, Deltona FL 32738; on this 27" day of December 2008. : /s/ George Trovato GEORGE TROVATO ST. JOHNS RIVER WATER MANAGEMENT DISTRICT “IN RE: City of Deltona — Lake Doyle to Lake Bethel Emergency Pumping Authorization _ F.O.R. No, 2005-51 Deltona, Florida - / EMERGENCY ORDER Pursuant to Section 373.119, Florida. Statutes, (F.S.), and Rule 40C-1.1009, Florida Administrative Code (F.A.C.), the St. Johns River Water Management District (‘District’), by and through its Executive Director, enters this Emergency Order, making the following findings of fact, conclusions of law and entering an order as follows: FINDINGS OF FACT 1. The District, a special taxing district created by Chapter 378, (F.S.), is empowered to administer and enforce Parts Iland IV, Chapter 373, F.S., and the rules promulgated thereunder. 2. On July 12, 2005, the City of Deltona (“Deltona”) was issued an Environmental Resource Permit (Permit No. 4-127-87817-1) authorizing the Lake Doyle to Lake Bethel Emergency Overflow Interconnection system (“System”). The System authorized under the permit included a brick and mortar plug in the Lake Doyle weir structure outfall pipe, closed weir gates at the Lake Doyle structure, closed channel gates and riser boards at the Ledford Drive and railroad berm structures, respectively. 3. On July 7, 2005, Deltona submitted an application to modify the above referenced permit (Application No. 4-127-87817-2) to construct five (5) drainage retention/detention areas, to offset the anticipated increases in pollutant loads*to’ Lake “* Monroe. 4, On August 9, 2005, Deltona requested emergency authorization from the District to open the closed structures and operate the ‘System and to delay the construction of the brick and mortar plug in the outfall pipe until after the 2005 hurricane Season. (See letter dated August 9, 2005, attached hereto as Exhibit A). 5. Lakes within the land-locked Lake Theresa Basin have staged to high elevations; Lake Doyle is currently at 24.7 feet NGVD. At the current elevation within the Lake Theresa Basin, there is minimal recovery of stormwater volume and such recovery occurs slowly because it is primarily in the form of evaporation and minimal seepage. At this elevation, areas within the City of Deitona are experiencing water encroachment into septic tank drainfield aerobic treatment zones, which can render septic systems inoperable. Additionally, portions of private property within the City of Deltona such as driveways, right of ways, and back yards, as well as public roads have standing water. 6. ‘The Volusia County Health Department has indicated onsite sewage system failure represents a health hazard. (See Exhibit A, letters from Volusia County Health Department dated, August 8, 2005 and March 18, 2003). 7. Emergency conditions exist that require immediate action to protect the public heaith, safety and welfare, and these conditions can be alleviated by authorizing activities regulated under Parts Il and IV of Chapter 373, Florida Statutes. 8. The Florida Department of Environmental! Protection has listed Lake Monroe as impaired for nutrients. Creating a new source of nutrient loading will => SS increase the -overall-nutrient-loading to-l-ake Monroe; thereby contributirig "toa violation rs of state water quality standards. _In this instance the discharge is being limited to the minimum needed to alleviate the emergency and is temporary. 9. The proposed activities, as limited by this Order are the minimum needed to alleviate the emergency. CONCLUSIONS OF LAW 10. Section 373.119, F.S., authorizes the District, when: it finds that emergency conditions can be alleviated, to issue an order without prior notice, reciting the existence of such emergency and requiring that such action be taken, as the Executive Director deems necessary to meet the emergency. 11. The present encroachment of water into the septic drainfields of private residences within the Lake Theresa Basin, and standing water within residential yards and public roadways ‘constitute emergency conditions requiring immediate action to protect the public health, safety and welfare of the citizens of City of Deltona. ORDER 12. The City of Deltona is authorized to temporarily open the closed structures and operate the System to draw down the water level of Lake Doyle to an elevation of 24.0 feet NGVD. 13. Once Lake Doyle reaches an elevation of 24.0 feet NGVD, the City of Deltona shall cease operating the.Systern. 14, The City of Deitona is further authorized to temporarily open the closed structures and operate the System to draw down the water level of Lake Doyle trom wee 0 feet NGVD to'23.5 feet NGVD, if the National Weather Séivice predicts a hurricane or tropical storm event and the City of Deltona is within the prediction area. | 15. Deltona shail close the system any time the water elevation of Lake Bethel equals or exceeds 5.5 feet N@Vb. 16. This authorization is only for the current’ Atlantic hurricane season and shall expire November 30, 2005. 17. By December 1, 2005 the variable weir structure outfall pipe shall be plugged as indicated in condition 37 of Permit No. 4-127-87817-1, unless superseded by the issuance of a permit modification. 18. The City of Deltona shall measure the water elevations of Lake Doyle and Lake Bethel, referenced to NGVD, prior to each day the system remains open. The City of Deltona shall submit monthly reports of water levels of Lake Doyle and Lake Bethel to the District using forms provided by the District. | 19. | The City of Deltona shall monitor the water quality weekly at: (1) the inlet side of the weir structure on Lake Doyle; (2) downstream of the point of discharge into Lake Monroe; and (3) upstream of the point of discharge into Lake Monroe. Each water sample shall be analyzed in a state-certified laboratory for the following parameters: TKN-D PO4-D TKN-T *PO4-T NOX-D TSS NOX-T Lead TP-D Zinc TP-T Cadmium: Chromium Total Hardness The City of Deltona shall submit monthly reporis of the water quality monitoring to the District. “30; Any dctivitiés “conductéd’ Under this “Authotization ‘must ‘not ‘catise flooding ’**""""“ _ and must be consistent with the terms of this Authorization. 21. All emergency actions taken pursuant to this order must be documented and submitted to the Altamonte Springs Service Center within three (3) days of taking such action. 22, All monitoring required by this order must be documented and submitted to the Altamonte Springs Service Center on a monthly basis. ' 23, This Order shall take effect immediately, subject to the concurrence of the District's Governing Board and shall expire November 30, 2005, unless modified or” extended by further Order. . DONE and ORDERED this 11" day of August 2005. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT EXECUTIVE DIRECTOR _ RENDERED on this 11" day of August 2005. SANDRA BERTRAM DISTRICT CLERK August 9, 2005 Mr. Kirby Green Executive Director . St. Johns River Water Management District P. O. Box 1429 Palatka, FL 32178-1429 Subject: City of Deltona, Florida Emergency Pumping Authorization Request for City of Deltona | Motion to Utilize Emergency Overflow Structure Dear Mr. Green: ntire Theresa Watershed, Within this sample area, we created four (4) rating curves which predict the number of lots and/or structures that would experience problems, depending on the flood elevation ‘attained. The four (4) scenarios that we investigated include the following: J. Encroachment into the drainfields aerobic treatment Zones. 2. Nuisance flooding to portions of the property such as driveways, right-of-way, back yards, and play equipment. “2pi@T SaBe @t ony 28/28 "dd THIBIT "A" Tee Le site St. Johns River Water Management District August 9, 2005 Page 2 3. Structural flooding to non-finished ‘floor portions of home such as porches, ' ‘garages, and exterior stemwalls: ; : 4, Estimated structural flooding above the finished floors, In addition, at the meeting we provided an exhibit demonstrating the likely rise in flood elevations depending on various amounts of rainfall or storm events, With these four (4) Tating curves, the City now has a much more reliable method to estimate the potential harm to the public from various hydrologic scenarios, . Tn previous years where as much as five to six feet of rainfall has occurred in a rainy season and caused very high flood Stages in short time intervals, the starting water level at the beginning of the rainy season. was much lower than this year (see graphs provided), With the unusual amount of tropical storm and hurricane activity predicted for this year, and with four (4) more months of potential heavy rains likely, we may experience flood stages as high as the City endured in 2003, if not higher. Because the high starting water level began early, in June of this year, it is critical that we lower the lakes now to provide freeboard for the rest of the hurricane season. _ : While assessing this request, please also consider the following information: Type l: Since we raised the alarm this summer in the Theresa Chain, the Chain of Lakes has steadily risen (please sce the attached lake level report). The four (4) large lakes we monitor on the Chain, Louise, Theresa, Angela, and DuPont began in June with elevations between 23.2 and 23.5. As of August 8, 2005, the same lakes are now between 24.7 and 24.9, Type 2: At this starting water level, even a routine storm like a mean annual storm (approximately 5-inches of rain in one day) could cause the lakes to reach an elevation of approximately 26, which would equate in the 5% study area to the following adverse conditions: a . Type 1: Lots with septic fuilure- 100 b. Type 2: Lots with nuisance flooding - 80 c. Type 3: Lots with non-FFE structural flooding - 20 d. Type 4: Lots with flooding above FFE - 1 Actue] valves would be much higher since these estimates are derived from the LIDAR survey study area, representing only 5% of the Theresa Basin. | 2G/8B'd SCTPECEIBETS OL BES. 684 SBE ONOLISG 30 ALID M4 Sb:at sage @T ony St. Johns River Water Management District August 9, 2005 Page 3 If a hurricane with a 100-year storm rainfall were to strike Central Florida this season with this starting water elevation, the flood stages would be predicted to rise to over elevation 28 and result in the following adverse conditions: ° a. Type 1: Lots with septic failure - over 400 b. Type 2: Lots with nuisance flooding ~ over 300 C, Type 3: Lots with non-FFE structural flooding - 100 - d Type 4: Lots with flooding above FFE - 14 Actual values would be much hipher since these estimates are derived from the LIDAR survey study area, representing only 5% of the Theresa Basin. ' : Even if a large storm event does not occur for the rest of the season, but we continue to get constant rainfall, one would expect the lakes to continue to rise to an elevation between 25.5 and 26.0. The effects of the lakes reaching that high level in 2003 arc already well documented as emergency conditions which facilitated two EA approvals, In order to avoid what the City endured two years ago,-we need to bring the lakes to elevation 23,00 to provide system freeboard. If you should have any questions or comments, please do not hesitate to contact us. We trust this information is useful for considering the request. eo = | ohn Masiarczyk ~Mayor WDM/ska/02.0042,000/corresp/S1R WMD-18,wdm cc: Bill Carlie, Compliance Coordinator, SIRWMD Mike Register, SIRWMD, Palatka William D. Musser, P.E., Tt-HAT Mark A. Rynning, P.E., Tr-HAI. Roderick K. Cashe, P.E., THAI Tatiana Hernandez, P.E., Tt-HAI 2Q/rG'd = SETREZESBETSOL ase Gal cas ONOLTEG “0 ALID Hd EbieT Sage Bt.ong ; ] @ Hug 0S O5 10:00a Enviromental Health 3867755292 pez @ Jeb Bush Governor John QO. Amwunobi, M.D., M.B.A. Scontiry Avgual 8, 2005 Fritz Behring City Manager 2345 Providence Blvd, Deltona, FL $2725 Mr, Behring: It was brought to the ottention of this office that the City of Dehtona is requesting approval from the St Johns River Water Management District to prevent the potential for flooding and excessive water problems, especially in the Lake Theresa area. This is algo the ara that two years ago Environmental Administrator, Pete Thornton, provided a lcticr of full support for thar request... A copy of that letier is attached for your review, ‘The position of this officc on this issuc has not changed, . The data provided wo this office by Mr. Mark Ryaning, P.E. and Mr. William Musser, P.E, of Tetra Tech indicate that a 5” rainfall event would cause the water level to isc Lo approximately 26} fi from the current.clevation of 24,7 ft, Based on their data, this could potentially couse 2000 suptic systems Lo experience flooding conditions (based on 5% study area of the Theresa Watershed indicating nearly 100 septic systems may potentially be flooded), : The data presonted indicates that if the water level was lowered to 23.0.4 5" rainfall event would raiye the water fevel (o approximalely 24.5 which thereby would result in the number of septic ) systomy potentially Hooded as very low, Also, the number of houses and structures potentially flooded would be synificant}y decreased ay well, : By lowering the current water level the potential for the health concems that arc generated hy flooding may be prevented. With the rain season already here and the water level where it is indicated the potential for Auoding may be present soun if there is a significant minfall event, hurricane or tropical storm in this arca. H'this office can be of any additional assistance please do not hesitate to call, ” Sincerely. ~Serme Ct Scott Chambers, RS. Environmental Specialist ce: Pete Thornton, Environmental Administrator. Volusia County Health Department Chuck Luthor, Environmenral Manager, Volusia County Health Department Mark Rynning, President. Tetra Tech William Musser, Viec President, Tetra Tech Volusia County Health Department, Environmental Heaith Field Office - 2752-B Enterprise Road, Oranne City, FL 32763-8316 (386) 775-5289/ Fax (386) 775-5292 over oo SSSCTSSESE PAGE. oo AUG 28+ ZaB5 19:00. - . ve ” BNOLTSG SO ALID Ys fhiBt Sage Bt Sn 48/58 'd SCTPGZSSBETS OL GEe4 684 SAE sas77ss200e p-3 GO e _ 7 Aug O89 OS 10:00a Enviromental Health March 18, 2003 Mr, Kirby Green Executive Director . St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178 Dear Mr. Grecn, It is the understanding of this office thut the City of Deltona is requesting approval from: the District ty refieve flooding and excessive water problems, especially in the Lake Theresa area. This letter is to provide full support for that request, The Volusia County Health Department Linvironmental Health Division is Tesponsible for the regulation of onsite sewaac systems and private wells, Over the past 2 years, the water tuble in the area has risen to levels not seen in ‘my cighlecn years at the department, ‘This office has had to issue press releases on several occasions warning of contaminated water due to rising waters covering onsite sewage sysiems, In addition, the drainheld portion of the septic systom is designed to be acrobic. Once the drainfield is flooded, the performance of the system in removing contaminants is compromised. Itis not unusual to detect scwage odors around flooded systems and proper percolation through dry soil is impossible. Ona single lot, this is a manageable problem, but there are hundreds of such S systems in this area, The amount of rain, the recent history of flooding. and onsite sewage system failure in the arca are well documented, and represent 2 health hazard necessitating assertive action. Understanding that corrections will take time and the rain scason will be upon us, this " situation could be characterized as un emergency, If there are just normal rain events this summer, this health hazard, will become uncontrollable. The only positive aspect of this situation is that the impending health erisig is preventable by taking assertive action now, This office will certainly assist in any way possible to support correction, Do not hesitate to call if you need additional informution or assistance, Sincerely, iY Af p , ; , COS 4 Peer D, Thormon RS, MPH Environmental Administrator ipt alin aa caAR sarat RRP PRS eg PARE. AS . surance dS dd SCTVECESBETE OL G24, 6B2..9ar.. ee ONOLIEI-S0-“ALTD Se Gt sages BTW ere Bete ae 12° Odd TWLOL %* i = soreerty | a : ~ + SO/EALL i SOMZIOL ~ : SO/L tidt “| OM0t701 —} H i . ; — 7 “+ t oa — eave | See eP ee e=a] seee | bez | sbe cet 6i'¢ 6L'¢e BOYZ i Btre S8'rzZ | _— core Seve [eo peo =al bh be ege~ | Ogre os} ers _ 992 bS"bz ;_ SL're 99°92 | . : : ~~. 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Docket for Case No: 05-003759