Findings Of Fact The subject applications request permits from the Central and Southern Florida Flood Control District (FCD) for the agricultural irrigation and drainage of 1,780 acres of citrus lands. Received into evidence without objection were the public notices of hearing appearing in The News Tribune, Fort Pierce, Florida, and The Stuart News, Stuart, Florida; the three permit applications submitted on behalf of Kay-One Grove, Ltd., and the Revised Staff Report of the FCD. The amount of water requested by the applications is 2,670 acre-feet per year with a maximum monthly withdrawal of 600 acre-feet. The Revised Staff Report, prepared by Doug Winter, a Civil Engineer with the Hydrology Division of the FCD, recommended an annual allocation of 1,619.8 acre-feet with a maximum monthly withdrawal of 574.8 acre-feet. This Report is attached hereto. Mr. Kenneth Harris, a consulting engineer for Kay-One Grove, Ltd., gave a summation of the applications and corrected page 1 of the Revised Staff Report, under the first paragraph of "A", to change "Township 37 South" to "Township 38 South". The summation was substantially the same as that set forth on pages 1 and 2 of the Revised Staff Report. The existing facilities were also represented to be as set forth in the FCD Report. Mr. Doug Winter testified that he evaluated the subject applications and prepared the Revised Staff Report, and testified as to its contents. As to the drainage aspects of the applications, Mr. Winter testified that there would be no adverse effect on the receiving water body since the drainage capacity of the applicant's land is within the FCD's limitations. As to the agricultural uses of the water, Mr. Winter used three criteria to determine the appropriate allocation. These three criteria were the adjusted basin yield, the supplemental crop requirement for citrus and the quantity requested by the applicant. The allocation is normally the lesser of these three quantities. It was determined that the adjusted basin yield was the limiting criteria and the amount of water available for annual allocation is 10.92 inches per acre per year for the C-23 basin, which equates over the applicant's 1,780 acres to be 1,619.8 acre-feet. The FCD uses this 10.92 figure for all allocations within the C-23 basin. The maximum monthly pumpage figure based on the amount of water which would be needed in the driest month to offset a 2 in 10 year drought, modified by an 80 percent application efficiency, was determined to be 3.875 inches par acre per month, or 574.8 acre-feet or 187.3 million gallons for the entire tract of 1,780 acres. This is in contrast to the 4.0 inches per acre maximum monthly withdrawal requested by the applicant, which would equate to 600 acre-feet. As to the use of ground water from three wells located on the property, Mr. Winter determined that the allocation would be the same as for the C-23 withdrawals since the recharge of these wells would be the same as the recharge of the surface water source. Mr. Winter then reiterated the conclusions and recommendations set forth in the Revised Staff Report. It was recommended that a water use permit be issued pursuant to Application Numbers 23238 and 22046 for an annual allocation of surface water and/or ground water in the amount of 1,619.8 acre-feet, which represents 10.92 inches per acre per year, with the condition that the maximum monthly withdrawal of surface water and ground water for the combination of the two not exceed 187.3 million gallons (which represents 3.875 inches per acre or 574 acre-feet) during times of adequate water level or moderate drought conditions. Should severe drought conditions occur, the FCD will issue an order requiring a reduction of water withdrawal rates based on a water shortage plan developed by the FCD. It was recommended that a surface water management permit be issued pursuant to Application No. 22039 for the operation of a system consisting of ditches, dikes, pumps and culverts as described in the application with the conditions set forth on page 11 of the Revised Staff Report. Finally, it was recommended that a right-of-way permit be issued authorizing a 48 inch culvert connection through the FCD's south right-of-way of C-23 adjacent to Project Culvert 15 and the use of Project Culvert 13. Mr. Harris then sought a clarification of the maximum monthly pumpage amount and was assured that the applicant could apply for emergency authorization of further withdrawals under the FCD's rules and regulations, provided extreme drought conditions were not existent. It was explained that the monthly quantity allowed here, the 3.875 inches, was based on reports of the average rainfall for the Fort Pierce area and the crop requirements. The Hearing Officer then asked Mr. Harris to explain his objections, if any, to the Revised Staff Report. Mr. Harris explained that the difference between the amount of water requested and that received in the Report is small, less than 10 percent. His only other objection was to the maximum allowable runoff figure. He would like this to be increased from the recommended 2.2 inches to 4 inches. It was explained that the allowable figure is based upon the maximum capacity of the canal. Mr. Harris stated that the applicant would probably make further application for additional run-off in the future.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested and the right-of-way permit be issued in accordance with the recommendations set forth on pages 9 through 11 of the attached Revised Staff Report. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. E.D. Holcomb, Jr. General Manager Kay-One Grove, Ltd. Post Office Box 1120 Fort Pierce, Florida 33450 Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida
The Issue The issue is whether an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 24th day of July, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
The Issue Whether Petitioner, Palafox, LLC (“Palafox”), is entitled to its reasonable attorney’s fees and costs incurred in its defense of the challenge to its Environmental Resource Permit (“Permit”) as raised in the Amended Petition in the underlying administrative matter, filed by Respondent, Carmen Diaz or her attorney, Jefferson M. Braswell, or both, pursuant to section 120.569(2)(e), Florida Statutes.
Findings Of Fact Palafox is a Florida limited liability company and was the applicant for the Permit in Case No. 19-5831. Palafox owns Lot 1, Block B, of the Palafox Preserve Subdivision, the six-acre property on which the Project will be developed. Ms. Diaz is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision. Petitioner is a member of the Palafox Preserve Homeowners Association, Inc. (the “HOA”). The HOA is not a party to this litigation. The HOA has previously agreed not to challenge any permits sought by Palafox for the development of the project. Mr. Braswell is not a party to this matter. He represented Ms. Diaz through the Final Order issued by the District in Case No. 19-5831. Palafox’s Renewed Motion for Fees sought attorney’s fees and/or sanctions against Mr. Braswell for his role in that case, as allowed under section 120.569(2)(e). Ms. Diaz’s Challenge to the Project The Project consists of a 36-unit multi-family residential development proposed to be built on Lot 1, Block B, of the Palafox Preserve Subdivision. The Project encompasses approximately 2.68 acres of Lot 1, Block B. The Project lies adjacent to, and immediately west of, Martin Hurst Road and adjacent to, and immediately south of, Palafox Lane. The remainder of 2 Mr. Braswell also filed a Proposed Final Order and Amended Proposed Final Order, which were not authorized and have not been considered by the undersigned in preparing this Final Order. Mr. Braswell is not a party to this proceeding and did not become a party thereto by merely appearing at the final hearing to make some argument on his own behalf. He did not move to intervene in this proceeding, or otherwise obtain party status, not even by ore tenus motion at the Final Hearing. Mr. Braswell did not file a notice of appearance and did not attend the Final Hearing as counsel for Ms. Diaz. Furthermore, Mr. Braswell did not request permission to submit a Proposed Final Order. Palafox’s property runs to the west of the Project and south of Palafox Lane, and is located within a perpetual conservation easement. Ms. Diaz’s property is a residential lot located west of, and not adjacent to, Palafox’s property. An approximate nine-acre conservation easement owned by the HOA lies between Ms. Diaz’s property and Palafox’s property. A portion of Petitioner’s back yard is located within the conservation easement. Approximately seven acres within the conservation easement are wetlands. The conservation easement, including the wetlands, straddles the boundary between Block A and Block B, with about two-thirds in Block A, for the most part owned by the HOA, and one-third in Block B, wholly owned by Palafox. Palafox sought an environmental resource permit from the District to construct storm water management facilities (SWMFs) to serve the Project. The SWMFs to be authorized by that Permit are on Palafox’s property. Palafox’s property, the conservation easement and wetlands, and Ms. Diaz’s property, are all located within the same closed basin. This means that storm water within the basin will generally not flow out of the basin in all storm events up to, and including, a 100-year, 24-hour storm. On October 30, 2019, following the District’s notice of intent to issue the Permit, Ms. Diaz filed an Amended Petition for Formal Proceedings Before a Hearing Officer (“Amended Petition”). In the Amended Petition, Ms. Diaz challenged the District’s issuance of the Permit alleging that the Project will (1) have adverse water quantity impacts to adjacent lands; (2) cause adverse flooding to on-site or off-site properties; (3) cause adverse impacts to existing surface water storage and conveyance capabilities; and (4) adversely impact the value and function of wetlands and other surface waters. She also alleged that the wetland had not been properly delineated previously, and that an older delineation was no longer valid. Specifically, Ms. Diaz alleged that the “proposed [storm water] system results in a massive change in the amount of storm water being discharged from the applicant’s site directly onto Petitioner’s property which leads to adverse impacts on her property.” On November 19, 2019, the Final Hearing was scheduled for February 19 and 20, 2020. Ms. Diaz was deposed on January 17, 2020, almost three months after filing her Petition, and two months after the Final Hearing date was set. The deposition revealed that Ms. Diaz was not the least bit informed of the Project. Ms. Diaz had not reviewed the Permit, and believed that the Permit authorized Palafox to build the Project, rather than the storm water treatment system. Ms. Diaz had not seen the site plans, had no understanding of what the Project would look like, and admitted she had done nothing to learn about the Project. In fact, Ms. Diaz testified repeatedly at her deposition that she simply does not want the Project built, regardless of whether it would actually impact her property or the wetlands, and regardless of what kind of development it is. She does not want Palafox’s property developed, in any capacity, and wants it to stay “the way it is now.” Ms. Diaz conducted no written discovery nor any depositions, and did not hire an expert until approximately one month before the final hearing. That expert, Mr. Carswell, had never visited the site. Although Mr. Carswell conducted a storm water analysis, Mr. Carswell conceded that Mr. Braswell prepared and sent him a ten-page report and asked him to consider it as Mr. Carswell’s opinion report. In reviewing and adopting that report, Mr. Carswell admitted that he did not do the type of analysis that he would have if he wanted to determine the incremental addition of storm water to a closed basin. Instead, he did a simple water balance equation. Mr. Carswell testified that he had never before used this type of analysis to support permitting for a storm water pond and that if he was going to try to predict the incremental contribution of storm water discharge from a project into a closed basin, he would utilize a model similar to the one submitted by Palafox in support of this Project. The undersigned found Mr. Carswell’s analysis was not a professionally-acceptable method for determining whether the Project met the standards for the Permit. In addition to Mr. Carswell, Petitioner offered the testimony of four other witnesses at the final hearing. None were able to offer any evidence that Palafox failed to provide reasonable assurance that the project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on-site or off- site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; and Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The testimony of two of those witnesses, Mr. Songer and Mr. Stinson, was in transcript form and was actually given in DOAH case No. 18-2734. In that case, neither witness’ testimony was accepted to defeat Palafox’s site plan approved under the more stringent permitting requirements of Leon County. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s (Sept. 24, 2018)). The remainder of Ms. Diaz’s witnesses’ testimony was equally ineffective. Mark Cooper, the Project engineer, testified that the Project would raise the water level in the wetland by .04 feet in a 100 year, 24-hour storm event, which he classified as a negligible impact. Mr. Cooper’s testimony confirmed that of Palafox’s expert engineer, Mark Thomasson, who classified that increase as “de minimus.” Cheryl Poole, Ms. Diaz’s other witness and an engineer who worked on a prior project on the property, merely testified to conditions that existed a decade prior that are not relevant to the Project. In short, Ms. Diaz presented no credible evidence at all that the Project would negatively impact either the wetlands or her property. After the final hearing, the undersigned administrative law judge issued a Recommended Order, adopted in toto by the District, concluding that Ms. Diaz did not carry her burden to prove that Palafox failed to provide reasonable assurances that the Project will not (a) cause adverse water quantity impacts to receiving waters and adjacent lands; (b) cause adverse flooding to on-site or off-site property; (c) cause adverse impacts to existing surface water storage and conveyance capabilities; and (d) adversely impact the value and functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Braswell’s Prior Challenges to the Project Mr. Braswell has been involved in challenges to the Project for over five years. In those challenges, he has represented his parents, the HOA, Ms. Diaz, or some combination of those parties. In 2015, Mr. Braswell filed an administrative challenge on behalf of his parents—Wynona and Robert Braswell (the “Braswells”), who live in the Palafox subdivision and are members of the HOA. See Braswell v. Palafox, LLC (Fla. DOAH Case No. 15-1190). In that administrative challenge, the Braswells challenged Leon County’s approval of the Project site plan.3 The Braswells raised many of the same factual issues regarding the wetlands and storm water impacts that Mr. Braswell later raised again in Ms. Diaz’s challenge to the Permit. The Braswells also raised the issues that 3 Mr. Braswell admitted that when he filed that case, he “didn't know very much about the [P]roject,” “didn't know the rules” for Leon County’s site plan approval, and that he and his parents “didn't realize kind of what [they] were getting [them]selves into.” the Project violated a private covenant in the subdivision’s governing documents, which was beyond the Division’s jurisdiction. Accordingly, Palafox filed a civil suit for declaratory judgement to resolve that claim. In the interim, jurisdiction of Case No. 15-1190 was relinquished to the County without prejudice to refer it again to the Division should the civil suit not dispose of the issues raised in the administrative case. See Braswell v. Palafox, LLC, Case No. 15-1190 (Ord. Rel. Jsd. May 14, 2015). After an initial grant of summary judgment for the Braswells and a reversal by the First District Court of Appeal, the trial court entered a final judgment for Palafox. (Final Judgment, Evergreen Communities, Inc. v. Braswell, No. 2015-CA-000765 (Fla. 2d Cir. Ct. 2017)). After the civil suit was resolved, Mr. Braswell renewed his parents’ challenge to the site plan. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s Sept. 25, 2018). As in the underlying Permit challenge, Mr. Braswell argued that the wetlands were not correctly delineated, and that the project would cause the wetland area to overflow and burden the “downstream” storm water facilities owned by the residential homeowners. While the County did not issue a storm water permit for the Project, approval of the site plan required a determination that the Project meets the County’s environmental code requirements. The County’s standard for volume control requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That standard is more stringent than the District’s requirement to provide “reasonable assurances” that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; and will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. In the site plan challenge, the administrative law judge found that the Project was consistent with the Code requirements and specifically found as follows: the Project’s proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. no statute, ordinance, rule or regulation requires a wetland to be re-delineated after it has been identified and placed in perpetual preservation under a conservation easement and that the argument to the contrary “would lead to the absurd result of re-surveying and re- recording allegedly ‘perpetual’ conservation easements every time a lot was developed” within a plat. Id. at R.O. ¶¶ 37 & 51. In yet another case arising from this dispute, in 2016, Mr. Braswell’s father filed a formal complaint against the Project engineer with the Florida Board of Professional Engineers. Mr. Braswell submitted additional information in support of that proceeding. See In re Mark Cooper, P.E., Case No. 2016052464 (Fla. Bd. of Prof’l. Eng’rs Mar. 14, 2017). The Closing Order in that case found no probable cause of a violation by Palafox’s professional engineer related to the storm water system after the independent reviewer concluded that, based on the materials submitted by Petitioner’s counsel, “there should be no adverse surface water impacts to adjacent property” from the Project. Id. at ¶ 1. After the resolution of the civil suit and prior administrative challenges, Palafox, the HOA, and the Braswells entered into a settlement agreement. Under that agreement, the HOA and the Braswells agreed they would not challenge the Project any further, as long as it complied with the site plan that the County had approved. Mr. Braswell signed that agreement on behalf of his parents as attorney in fact. Palafox, believing that Ms. Diaz was bound by that settlement agreement as a member of the HOA, and that she had breached the agreement by filing the Amended Petition in the Permit challenge, filed a civil suit in Leon County Circuit Court. See Palafox, LLC v. Diaz, Case No. 2019-CA-002758 (Fla. 2d Cir. Ct.). Mr. Braswell, representing Ms. Diaz in that suit as well, filed a counterclaim, subsequently voluntarily dismissed, in which he again raised the issues of the wetlands delineation and downstream flooding. (Def’s Ans. and Aff. Def. and Countersuit for Dec. Jdmt. at pp. 6-9). At no point between the resolution of the prior litigation regarding this Project and filing the Permit challenge did Mr. Braswell obtain new evidence or expert opinion to suggest that the Project would not meet the District’s more lenient standards for granting an environmental resource permit. Nor did he adduce evidence at hearing that would lead an administrative law judge to reach a different conclusion from Judge Ffolkes—that the project would not cause adverse impacts to downstream owners, that the Project would not adversely impact the wetlands, and that no new wetland delineation was required.
Findings Of Fact The subject application requests a water use permit from the Central and South Florida Flood Control District (FCD) for use as a public water supply for an area consisting of 12,000 acres. Received into evidence without objection were the notice of public hearing appearing in The Palm Beach Post, West Palm Beach, Florida; Supplementary Report - Water Treatment Plant and Raw Water and Transfer Mains - September, 1970; Water and Sewer Rate Study, July, 1971; Water and Sewer Rate Study, January, 1972; Summary Report, Water and Wastewater Program, October, 1972; Comprehensive Report, Water Works Improvements, January, 1965; pages 20, 21 and 24 of Addendum to supplementary report filed with application; letter to J.B. Jackson from James C. Williams dated July 17, 1975; letter to Abe Krietman from John H. Klinch, dated July 31, 1975; letter to J.B. Jackson from J. Eldon Mariott dated July 22, 1975; and the Staff Report of the FCD. The application was a part of the hearing officer's file. The application requested a diversion (by way of 18 existing and 4 proposed new wells) of 12,293.2 million gallons of ground water a year and a maximum daily diversion of 33.68 million gallons for a fifty year period. The Staff Report, which is attached hereto, recommends the issuance of a five year permit for an annual allocation of 4,668 million gallons, a maximum daily diversion of 25.45 million gallons and a maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto. Mr. John Klinch, a consulting engineer, testified as to the contents of the application, as revised, which he prepared. It was explained that the projected number of proposed new wells did not include the possibility of failure of some of the existing wells, which do show indications of deterioration at this time. He further compared the water consumption projections for 1976 with the actual demand of the first half of 1975. Said comparison indicates that the projection was underestimated. Projected for 1976 were 9,000 meters. For the first six months of 1975, there were 8,342 meters. The projected average daily use for 1976 was million gallons. As of June of 1975, it has exceeded that at million gallons. The average per capita daily consumption in Delray Beach is approximately 240 gallons. The water consumption projection for the year 1980 is estimated at approximately 25 million gallons per day. Mr. Klinch testified that there had been no problems with salt water or chloride levels in the existing wells. The next witness called by the applicant was Louis Martin, Director of Public Utilities for the City of Delray Beach. He has never, since October of 1973, had to restrict water use, a fact which he attributes to good water management. In December of 1972 the City Council adopted a bond resolution authorizing the validation of issuance of water and sewer revenue bonds in the amount of $5,000,000.00 to expand the water treatment plant to 24 million gallons per day and to construct four new wells. The bonds were approved by the citizens of Delray Beach. Other long range plans include the engineering for the enlargement of the sewage treatment plant from 12 to 24 million gallons a day. This, together with the addition of 4 extra wells, is part of a plan whereby the City of Delray Beach would become a regional water center. Mr. Gerry Winter, a hydrogeologist with the FCD, testified that he evaluated the subject application and prepared the Staff Report in this case, and testified as to its contents. As criteria in evaluating the application, Mr. Winter looked at whether the use was a reasonable and beneficial one and whether the use would present damage to resources or other users. The limiting factor in this particular application was the danger of salt water intrusion. It was recommended that the applicant be required to replace monitoring wells, so that the FCD could obtain valid salt water interface data. It was determined by Mr. Winter that the diversion requested by the applicant would not be a reasonable use of the water with regard to the resource since the current estimate of recharge will equal discharge by the year 1980. Therefore, it was recommended that a five year permit be issued for a maximum annual diversion of 4,668 billion gallons (such amount being equal to the estimated 1980 demand - an average day demand of 12.79 million gallons - times 365); a maximum daily diversion of 25.45 million gallons; and a total maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto pertaining to reports to the FCD and salinity monitoring wells. Finally, Mr. Winter testified that, although his report was prepared prior to receipt of the letter from the Palm Beach County Health Department (Exhibit No. 7), the letter was reviewed by the FCD staff and it was considered insignificant to the impact of this application. Mr. Saberson expressed agreement with the Staff Report.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be granted in accordance with the recommendations and conditions set forth in the Staff Report. Respectfully submitted this 8th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida Roger Saberson, Esquire City Attorney City of Delray Beach 100 North West 1st Avenue Delray Beach, Florida 33444 =================================================================
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. 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. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. 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, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. 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. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
