Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Arthur Hastings 708 Lincoln Avenue Leesburg, Florida John Wheeler, Esquire Post Office Box V West Palm Beach, Florida 33402 Granada Properties, Ltd. 341 North Mills Orlando, Florida
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue The issue is whether Hernando County's application for an environmental resource permit authorizing the construction of a new surface water management system to serve a 7.85 acre drainage system improvement three miles southeast of Brooksville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Richard J. Silvani, Dick W. Thompson, James E. and Marilyn Bates, Joyce Menzie, James M. Gibson, Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R. Sosnoski, Mr. and Mrs. Robert L. Nelson, and Mr. and Mrs. Richard Ladow (Petitioners), are property owners in central Hernando County, Florida. Respondent, Southwest Florida Water Managment District (District), is the state agency charged with the responsibility of issuing Environmental Resource Permits (ERP) within its jurisdictional boundaries. Respondent, Hernando County (County), is a local government seeking the issuance of a permit for the purpose of alleviating drainage and flooding problems in a subdivision known as High Point Gardens in the central part of the County. On June 11, 1997, the County filed an application with the District seeking authorization to construct a low earthen berm to help control flooding in High Point Gardens, an eighty- five unit residential subdivision. On September 29, 1997, the District gave notice of its intention to issue ERP No. 449342.01 authorizing the "construction of a new surface water management system to serve a 7.85 acre drainage system improvement known as the Hernando County - High Point Gardens Drainage Improvements." The project is located off Sun Hill Lane, three miles southeast of Brooksville, Florida, in central Hernando County. On an undisclosed date, but in a timely fashion, Petitioners filed their Petition for Informal Hearing challenging the issuance of the permit. As grounds, Petitioners alleged that the permit application contained "possible miscalculations of design" which would "alter the natural water flow route"; "adversely affect several acres of natural wetlands by changing hydrology of surface area"; "adversely affect adjacent uplands by innundating forest areas never before flooded by heavy rainfall"; "not guarantee 100% flood protection to the few affected homes"; and "create flood problems to adjacent homes and property by diverting stormwater from natural flow (north) to area east of 'proposed' retention area." The petition further alleged that the "'proposed' area should not be normal recepient [sic] of excess water from Cedar Falls subdivision" and that "all affected properties are not owned or easements acquired by Hernando County for surface water storage." The filing of the petition prompted the initiation of this proceeding. The Permit The High Point Gardens subdivision, which lies within the Bystre Lake Basin, is a "relatively old subdivision," having been built around the 1970's. There is a low area in the middle of the subdivision, and it has "[s]everal sinks with a natural drainage within the area." Because the thirty-square-mile basin is a closed drainage basin, with no natural outflows, "significant" flooding problems have been present throughout the basin since at least the 1980's. In an effort to resolve flooding problems within the basin, the County and District jointly sanctioned a study by a consulting firm, Dames and Moore, to provide suggested alternative actions to correct the problem. The firm's first interim report was rendered on August 5, 1988, and a final report known as the Bystre Lake Stormwater Management Master Plan was rendered in August 1989. Among other things, the consultant's report recommended that a berm be constructed to relieve the flooding in the High Point Gardens' area. Acting on the report, the County obtained a construction permit from the District in August 1991 in accordance with the consultant's recommendation, but construction on the project was not commenced prior to the permit expiring in 1994. Although the consultant's report was the genesis for the first permit, the plans and specifications for the new berm have been modified by engineers after further study and review. It is noted that the total land area of the project will be less than 100 acres. The High Point Gardens subdivision lies within sub-basin 304 of the basin. Under the new proposal, water which now comes into sub-basins 304 and 406 from sub-basins 305 and 306 will be stored in those latter sub-basins. The requested permit would authorize the County to construct a low earthen berm along the western side of sub-basin 406 and the southern boundary of sub- basin 304 to help control flooding in the subdivision. The proposed berm will range from one to five feet in height and extend some 3,250 feet, or approximately six-tenths of a mile. It will range from eight to ten feet in width with a side slope of 4 to 1. The berm will impound water upstream of the berm to an elevation of 90.5 NGVD, which is 1.5 feet higher than the water would rise in the area under natural conditions. The water will be stored in two natural ponds which are now located in the project area. Once the water reaches an elevation of 90.5 NGVD, which will occur only during an event exceeding a 25-year storm event, three overflow structures will become operative and are designed to mimic the natural water flows of the area. After the berm is constructed, all basins "downstream" of the berm, including sub-basins 304, 405, and 406, will have "significantly lower flood elevations than the 10, 25 and 100- year storm event." That is to say, existing flooding to the north and east of the proposed berm will be lessened. To the extent that additional impoundment of water behind the berm will occur, or flooding beyond the berm may occur during a 100-year storm event, the County will acquire easements from local property owners to store the additional water. Until the aquisition of land occurs, construction cannot begin. There is one already disturbed wetland area near the proposed construction area. No mitigation is required, however, since the impact will be temporary and the area is expected to naturally revegetate itself. There will be no adverse impacts to fish, wildlife, or adjacent wetlands. Neither will the project create any other environmental concerns. While there will be some impact to upland trees caused by the impounded water, under existing District rules, that impact cannot be used as a basis to deny the permit. Based on generally accepted engineering principles, the project is capable of being effectively performed and can function as proposed. Also, the project can be effectively operated and maintained. The County has the resources to undertake the project in accordance with the terms and conditions of the permit. The greater weight of credible and persuasive evidence supports a finding that the County has given reasonable assurances that all applicable criteria for the issuance of a permit have been met. Petitioners' Objections At hearing, Petitioners contended that the overflow structures for the berm would alter the natural flow of water, and increase the flow of water to the east of the proposed project, where several Petitioners reside. As previously noted, however, the more credible evidence shows that the project will not increase the natural flow of water to the east of the berm. More specifically, expert testimony demonstrated that the regular flow through each weir in the post-development condition will not be adversely greater than what occurred during the pre- development condition. Petitioners also contended that the wetlands will be negatively impacted by the project. Contrary expert testimony by witness Defoe established, however, that there will be no permanent adverse impacts to wetlands, fish, or wildlife if the permit is approved. Petitioners next contended that the process was flawed because very few on-site inspections of the project area were made by District and County personnel, especially during the rainy season, before the application was preliminarily approved. There were, however, on-site inspections by District and County staff and consultants, and it was not shown that the lack of additional inspections affected the validity of their studies. A further contention was made at hearing that the information supporting the application was insufficient and that more study, including soil boring tests, should have been made. As to additional soil boring tests, the evidence shows that it is not a common engineering practice to perform soil testing throughout the entire area that will be submerged. Therefore, the existing tests were adequate to support the engineering assumptions. Further, even if there were some infirmities in the data and assumptions used and made in the 1989 Dames and Moore report, as alleged by Petitioners, the errors or omissions were minor, they were subject to later refinement by professional engineers, and they did not materially affect the overall validity of the current application. Finally, the application file contains uncontradicted technical information supporting the issuance of the permit. Petitioners' other concerns, while sincere and well- intended, are not relevant to the permitting process. For example, a concern that the construction of a berm will decrease nearby property values, even if true, is not a consideration in the permitting process. Similarly, Petitioners' valid concern that some nearby upland trees will be damaged if water levels rise for a prolonged period of time is not a basis under existing District rules to deny the permit. At the same time, whether the project is cost-effective and the best alternative for alleviating flooding conditions in the area are political decisions for the County, and thus they are not in issue in this proceeding. Finally, Petitioners have pointed out that the County has not completed acquisition of the necessary easements for the project, and that until this is done, a permit should not issue. However, the District has specifically provided as a condition precedent to any construction work that the County finalize ownership or control for all property where water levels will be raised by the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting Hernando County's application for Standard General Environmental Resource Permit No. 449342.01. DONE AND ENTERED this 8th day of June, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Chester Bradshaw 18520 Bradshaw Road Dade City, Florida 33523 Richard L. Silvani 24419 Lanark Road Brooksville, Florida 34601 Margaret M. Lytle, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Robert Bruce Snow, Esquire 20 North Main Street, Room 462 Brooksville, Florida 34601
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
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 Whether a consumptive-use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500046 requested water from one (1) well for the purpose of irrigation which is an existing use. The center of withdrawals will be located at Latitude 27 degrees 30' 6" North, Longitude 81 degrees 44' 54" West in Hardee County, Florida. Total continuous acreage is 80 acres. Use is for not more than 15,000,000 gallons of water per year and not more than 1,152,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Notice was published in a newspaper of general circulation, to-wit: The Herald-Advocate, on May 29 and June 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified mail, copy of the Notice and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The applicant has previously written a letter requesting the application to be changed from 15,000,000 gallons to 30,000,000 gallons of water per year. He stated that he wished to amend the application to increase it by that amount. The witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes, as pertained to the application on hand. The staff recommended that the application for the amount of water requested be granted but that the additional amount requested by applicant by letter of June 8, 1975, to the Southwest Florida Water Management District be denied inasmuch as said amount would exceed the water crop principle.
The Issue The issue is whether Respondent, Southwest Florida Water Management District (the "District"), should approve the application of Respondent, Florida Department of Transportation ("DOT"), for modification of a standard general environmental resource permit: modification permit no. 44011760.010 (the "modification permit").
Findings Of Fact Petitioner owns a developed parcel of mixed-use property in Pinellas County, Florida, known as the U.S. 19 Commerce Center (the "Commerce Center"). The Commerce Center is proximate to U.S. 19 and is located within the Alligator Creek Watershed. DOT is the state agency charged by statute with responsibility for the construction, maintenance, and operation of the State Highway System, including U.S. 19. DOT proposes a highway reconstruction project of a portion of U.S. 19 that is proximate to the Commerce Center and located within the Alligator Creek Watershed. DOT seeks the modification permit from the District in order to complete the highway reconstruction project. The District is a political subdivision that operates under the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes (2001). (All statutory chapter and section references are to Florida Statutes (2001) unless otherwise stated.) The District is responsible for regulating, among other things, environmental resource permitting in Pinellas County, including the permitting for any regulated activity within the Alligator Creek Watershed. The area of concern for the District in this case involves a sub-basin within the Watershed that is crossed by several channels and drainage ditches including those identified by the parties as Channel A, Channel G, and the "east-west ditch." The channels and ditches in the sub-basin eventually flow into the ultimate outfall for the entire basin. On June 21, 1999, the District issued Environmental Resource Permit ("ERP") No. 4411760.008. The parties refer to that permit as the ".008" permit or the "original permit." Petitioner did not challenge the original permit. The original permit authorized DOT to construct a surface water management system for anticipated runoff caused by the reconstruction of U.S. 19 in the vicinity of Drew Street and the Commerce Center (the "original project"). DOT designed the original project to collect post development stormwater runoff, treat the runoff, and discharge it. The original project included several surface water detention ponds east of U.S. 19 in the vicinity of the Commerce Center. The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1, and 4E2. DOT intended to locate Pond 4B on Commerce Center property. However, DOT and Petitioner were unable to agree on terms, and DOT filed a condemnation action in circuit court pursuant to DOT's power of eminent domain. DOT withdrew the condemnation action against Petitioner sometime before January 19, 2001. On January 19, 2001, DOT applied to the District for approval of a modification to the original permit. On June 1, 2001, the District issued permit modification No. 44011760.010. The parties refer to this second permit alternatively as either the ".010" permit or the "modification permit." This second permit is the modification permit that is at issue in this proceeding. The modification permit eliminates Pond 4B and authorizes the addition of Pond 4C to be located on property that is not owned by Petitioner. The modification permit also combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds 4E1 and 4E2 into Pond 4E. In addition, the modification permit moves the point of discharge in the east-west ditch to the west closer to U.S. 19 and farther from the Commerce Center; places 7.72 acre-feet of fill in the 100-year flood plain; compensates for the fill by equivalent excavation and storage modeling; and places impervious liners in two ponds (the "modified project"). The modified project slows the rate of discharge in the system and increases water quality treatment. The modified ponds will have more storage volume, and the discharge rates from the ponds will be lower. The modified ponds will peak at hour 12 of a 25-year, 24-hour storm event. The modified project will discharge into Channel A and the east-west ditch. Petitioner challenges the modification permit, in relevant part, on the ground that DOT does not own the property required for the modified project and cannot acquire control of the property through the power of eminent domain. During the hearing, Petitioner represented that DOT had previously begun two condemnation actions to acquire property necessary for the original project but had entered voluntary dismissals of both actions. Petitioner argued that Florida Rule of Civil Procedure 1.420 bars DOT from instituting any future eminent domain actions to obtain control of property needed for the modified project. The evidence does not reveal the underlying facts associated with the condemnation actions referred to by Petitioner. If Petitioner were to demonstrate the legal necessity for DOT to acquire control of a portion of Commerce Center property in order to complete the modified project, there would be no evidentiary basis for a finding that the portion of Commerce Center property required for the modified project would be identical to that DOT previously sought to condemn twice in connection with the original project. Petitioner did not demonstrate the legal necessity for DOT to acquire control of Commerce Center property in order to complete the modified project. Applicable rules do not require ownership of property by entities with the power of eminent domain, including DOT. Rule 40D-4.101(3). Ownership is not a condition of issuance but is merely information that must be included in the permit application. Rule 40D-4.101(2). The original ALJ in this case issued a prehearing order that prohibits Petitioner from challenging DOT's ownership of the property needed to complete the modified project. The law of the case established in the prehearing order, prohibits Petitioner from challenging: the legal right of DOT to discharge into the east-west ditch; the legal ownership or control of the area of the project where Pond 4E is to be located; and the legal right to utilize Petitioner’s stormwater "retention" area. The preponderance of evidence shows that DOT currently owns all of the property necessary to construct the modified project. Furthermore, the modification permit specifically provides that DOT cannot begin construction until DOT owns or controls all property necessary for the modified project. The District correctly reviewed the application for the modification permit. The District correctly applied the design and performance criteria set forth in the Basis of Review for Environmental Resource Permit Applications (the "BOR"). The BOR is adopted by reference in the District’s rules. Rule 40D-4.091(1). The parties entered into several stipulations in addition to those previously discussed. In relevant part, the parties stipulated that no special basin criteria apply to the modified project. The parties also stipulated to the accuracy and veracity of the Alligator Creek Watershed Study (the "Alligator Creek Study"). The Alligator Creek Study is the only known source of both elevations and timings during rainfall events for the area surrounding the modified project. Among other things, the Study predicts stormwater levels in various locations during severe rainfall events. The predictions are based upon existing drainage capacity within the Alligator Creek basin and also upon certain assumptions regarding conditions that exist at the time that a rainfall event begins. The Alligator Creek Study, for example, predicts a high water level in Channel A of 23.28 feet at hour 16 during a 25-year, 24-hour storm event. The prediction is based upon the capacity of the receiving water-body, the current rate at which surface areas currently discharge into that water-body, and the assumption that the rainfall event is uniform across the entire Alligator Creek basin. The Study also assumes mean high tide at the ultimate outfall of the basin. The stipulations between the parties leave several issues to be determined. One issue is whether the east-west ditch is an historical discharge location in the area surrounding the modified project. The original permit and the modified permit authorize runoff to discharge into two locations. One location is the east-west ditch, and the other is Channel A. Petitioner claims that the east-west ditch is not an historical discharge location but is a detention facility constructed by Petitioner and is Commerce Center property that DOT cannot utilize in the modified project. In a prehearing order, the original ALJ in this case prohibited Petitioner from raising the arguments that the east-west ditch is not an historic discharge location and that DOT is not legally allowed to discharge into the ditch. Nevertheless, Petitioner submitted evidence relevant to the claim that the east-west ditch is not an historical discharge point. The modified project is located in an open drainage basin because the basin does not satisfy the definition of a closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable discharge for projects in an open basin is the historic discharge. BOR 4.2.a.1. The District determines historic discharge first by reference to an existing or permitted site. BOR 4.2.a. The District considers a discharge at a point that has been permitted by the District to be a legally allowable discharge. The east-west ditch is a permitted discharge point in the original permit, and Petitioner does not challenge the original permit. The modified project moves the discharge point in the east-west ditch to the west farther from Commerce Center property. That change does not alter the determination that the modified project utilizes an historic discharge point authorized in the original permit. The discharge point for the modified project is within a permitted location in the original permit. In any event, Petitioner failed to show any adverse impact caused by moving the discharge point in the east-west ditch further west away from the Commerce Center. Putting aside the original permit, Petitioner claims that the east-west ditch did not historically extend west to U.S. 19 but was a detention pond required by the City of Clearwater as a condition of approval for the original development of the Commerce Center. The District looks back in time until 1984 to determine historic discharges. The historical drainage flow patterns for the locale of the modified project were in existence as early as 1971. The preponderance of evidence shows water flowing in the historical drainage pattern to the area of the east-west ditch. Prior to 1984, Petitioner excavated the east-west ditch to further enhance the drainage flow pattern. This is the drainage flow pattern that exists at the project location today. Another issue left unresolved by the stipulations between the parties is whether DOT provided reasonable assurances that the modified project will not cause adverse water quantity impacts to receiving waters and adjacent lands in accordance with the requirements of Rule 40D-4.301(1)(a). The appropriate standard for determining water quantity impacts for the modified project is the peak rate of runoff, rather than the volume of runoff. Compare BOR 4.2.a (defining allowable discharge in an open basin by reference to peak rates) with BOR 4.2.c (defining allowable discharge in a closed basin by reference to volume). Petitioner stipulated that there are no special basin criteria associated with the modified project, and Petitioner did not challenge the validity of the District's rules including those that measure water quantity impacts by peak rates of discharge. The District required DOT to calculate pre- development and post-development rates of runoff based on the District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution. BOR 4.2.b. The data utilized by DOT are based on the assumption that rainfall will occur simultaneously over the entire basin. The assumption supports calculations based on a greater quantity of rainfall over the entire basin than would occur if it were assumed that rainfall began in a portion of the basin and then proceeded to cover the entire basin. DOT provided reasonable assurances that post- development discharge rates in the modified project will not exceed pre-development rates. Post-development discharge rates for the east-west ditch and for Channel A are 50.7 and 13.5 cubic feet per second ("cfs"), respectively. The respective pre-development discharge rates for the east-west ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the post-development rates of discharge for the modified project are less than those for the original project. The area surrounding the modified project is flood- prone. Petitioner claims that the District should have reviewed the modified project for volume of runoff as well as rates of discharge. District rules require the District to consider volume in closed basins but authorize the District to consider only rates of discharge in open basins, such as the Alligator Creek basin, unless otherwise specified. The only specified exception is for the Delaney Creek basin. While some open drainage basins can be flood-prone and volume-sensitive, District rules do not distinguish between open basins that either are or are not flood- prone. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2. The exercise of agency discretion that considered rates of discharge rather than volume was consistent with applicable rules and prior agency policy. The evidence does not show any prejudice to Petitioner from the failure to consider volume. Petitioner failed to show that the amount of annual volume would increase once the modified project is completed. Aside from volume, other District rules prohibit projects that cause adverse flooding to the property of others. Rule 40D-4.301(1)(b), in relevant part, requires DOT to provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property. Rule 40D-4.302(1)(a)1, in relevant part, requires the District to consider a system’s effect on the property of others. The District measures the potential for flooding, in relevant part, by encroachment into the 100-year flood plain. District rules permit no net encroachment into the 100-year flood plain. However, the rules do allow for encroachment into the 100-year flood plain if the encroachment is offset. The modified project encroaches into 7.72 acre-feet of flood plain. As partial compensation for the loss, DOT provides 2.46 acre-feet of equivalent excavation. DOT compensates for the remaining 5.26 acre-feet of encroachment by storage modeling. Storage modeling consists of computer models that demonstrate how the ponds in the modified project will accommodate expected stormwater runoff from a 100-year, 24- hour rainfall event. The storage modeling assesses the storage capacity of the ponds on the basis of rainfall and tailwater. Tailwater is a downstream water condition that can be measured in terms of elevation, i.e., stage; and in terms of time, i.e., the hour in which a particular stage occurs. DOT's storage modeling demonstrates that the ponds in the modified project will first drain downstream and then fill from backflow that occurs as tailwater stages increase. DOT provided the storage modeling compensation in Pond 4E by designing it to take in backflow from the east-west ditch and Channel A during a 100-year storm event. The increased backflow capacity of Pond 4E provides the additional storage necessary to preclude any net encroachment into the 100-year flood plain. The storage modeling by DOT demonstrates that the modified project will not exceed the high water levels established in the Alligator Creek Study for a 100-year storm event. The storage modeling and the equivalent excavation provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property; and will not adversely affect the public health, safety, or welfare or the property of others. The storage modeling complies with the requirements of in BOR 7.7.3 for the District to review variable tailwater stages if they have a significant influence on the project design. The District considered the impact of the modified project on variable tailwater conditions based on data utilized for the Alligator Creek Study. Data utilized in the Alligator Creek Study are based on the assumption that rainfall during a 24-hour rainfall event will occur simultaneously over the entire basin. The assumption does not take into account 24-hour rainfall events that begin downstream from the modified project and increase tailwater stages before the ponds in the modified project can drain sufficiently to accommodate backflow from the increased tailwater stages. Petitioner's expert opined that the modified project could cause flooding of Commerce Center property if: the tailwater stage downstream from the modified project were higher than that assumed in the study; and a rainfall event started downstream in the Alligator Creek basin and moved across the basin toward the modified project. The expert determined that the earlier increase in tailwater stages could cause the peak runoff from the storm at approximately hour 12 to coincide with peak high tailwater stages. The expert opined that the coincidence of high water level in Channel A and the east-west ditch during the time of peak runoff from DOT's drainage system could overload Channel A and the east- west ditch and cause flooding on Commerce Center property. The opinion of Petitioner's expert was reasonable and credible as far as it goes. However, the expert opinion was not persuasive. Although the opinion was supported by underlying facts or data sufficient for admissibility, within the meaning of Section 90.705, the underlying facts and data were not persuasive. The underlying facts and data consisted of some information from two storms identified as: a three-year storm on July 15, 2001; and Tropical Storm Gabrielle on September 14, 2001. Petitioner's expert assumed a set of circumstances under which he opined that the modified project would fail but did not support the assumption with persuasive evidence. Information from the two storms relied on by the expert does not outweigh the modeling done by DOT based upon the Alligator Creek Study, the District’s 25-year design storm event, and other relevant District criteria. Petitioner did not submit a model different from that submitted by DOT and did not submit any evidence that the storage modeling presented by DOT was incorrect. The facts and data underlying the expert opinion are flawed for other reasons. The expert opinion utilizes numbers for the high tailwater mark in a 25-year design storm that were calculated in the Alligator Creek Study. Those numbers are based upon uniform rainfall across the basin. If rainfall does not occur simultaneously over the entire basin, the water draining into the basin will be less than that assumed in the Alligator Creek Study for a 25-year design storm. In a 25-year storm in which rainfall does not occur simultaneously over the entire basin, the high water level in Channel A will not be 23.28 feet, as shown in the Alligator Creek Study, but will be some unknown lesser elevation. If rain does not fall uniformly across the entire basin, the peak hour of runoff from the modified project may not occur at hour 12, and the high water level in Channel A may not occur at hour 16. The tailwater condition assumed in the Alligator Creek Study and the timing of that tailwater condition are both consistent with a simultaneous, across-the-basin rainfall event of 8-9 inches over a 24-hour period. In order to move the start of the tailwater condition, it would be necessary to recalculate the expected high tailwater conditions based upon rainfall occurring at different times throughout the basin. If a rainfall event is not uniform across the basin, the tailwater data underlying the expert opinion would decrease. The design-storm underlying the expert opinion would produce a storm surge of such magnitude that it would likely flood 75 percent of Pinellas County. The resulting storm surge or high tide would be much larger than the rainfall from a 100-year storm. Rule 40D-4.301(1)(c) requires DOT to provide reasonable assurances that the modified project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Petitioner claims that the east-west ditch is either a detention or retention pond, within the meaning of BOR 1.7.5 or 34, and that the modified project will adversely affect the pond by discharging into it. The original ALJ established the law of the case in an Order on Motion to Strike that precludes Petitioner from raising this issue. Nevertheless, Petitioner claims that the east-west ditch is either a detention or retention pond. No part of the east-west ditch, including that part widened by Petitioner in 1984, is a detention or retention pond within the meaning of BOR 1.7.5 and 34. The post-development runoff rate into the east-west ditch from the modified project will be less than both the pre-development run-off rate and that rate previously authorized in the original permit. The post-development runoff rate from the modified project will not adversely affect any storage capabilities inherent in the ditch. DOT provided reasonable assurances that the modified project will not cause adverse impacts to existing surface water surface storage and conveyance capabilities. Rule 40D-4.301(1)(e) requires DOT to provide reasonable assurances that the modified project will not adversely affect the quality of receiving waters. The modified project will utilize wet detention ponds to provide water quality treatment. BOR 5.2.a requires wet detention ponds to treat the first inch of runoff; include a minimum of 35 percent littoral zone; and discharge the system’s treatment volume in no less than five days, with no more than one-half of the total volume being discharged within 2.5 days. The wet detention ponds in the modified project provide adequate water quality treatment by allowing stormwater to be stored in each pond for five days and by allowing sediments to settle on the bottom of the pond. Vegetation will occur within the ponds and provide for the uptake of the nutrients in the water. Skimmers will retain oils and greases in the pond. The ponds in the modified project will hold more water for a longer time than those in the original permit. DOT provided reasonable assurances that the modified project will not adversely affect the quality of receiving waters in accordance with the criteria in BOR 5.2.a. Petitioner's expert opined that water quality would be less than that required by District rules if the hypothetical events described in paragraphs 42 and 44 were to occur. However, Petitioner failed to provide persuasive underlying facts or data to support the expert opinion. BOR 5.2.a requires water treatment for only the first one inch of runoff because that is where oils and greases are located. The remaining runoff during a 25-year, 24-hour storm does not require water quality treatment. Rule 40D-4.301(1)(g) requires DOT to provide reasonable assurances that the modified project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042. DOT satisfied the requirements of the rule by showing that during a 100-year storm event, the modified project will preserve off-site water levels. Rule 40D-4.301(1)(i) requires DOT to provide reasonable assurances that the modified project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. DOT satisfied the requirements of the rule. The relevant evidence provided by DOT is based on the Alligator Creek Study. The Study is accepted in the engineering field as accurate, and the parties stipulated to the accuracy and veracity of the information contained in the Study. The modified project meets the conditions for permit issuance in Rules 40D-4.301 and 40D-4.302. The proposed project is located in a right-of-way dedicated for public highway purpose as required by Rule 40D-40.302(3)(a). The modified project will not drain lands outside of the jurisdiction of DOT within the meaning of Rule 40D- 40.302(3)(b)1. The modified project will not lower the dry season groundwater table outside of the project area within the meaning of Rule 40D-40.302(3)(b)2. The modified project will not lower groundwater tables where doing so would adversely affect existing legal users. BOR 4.6.4. The wet detention ponds in the modified project will be lined with an impermeable plastic liner which will "isolate" the stormwater from the adjacent groundwater table, will prevent the lowering of that table, and will preserve the water table as is. After installation of the liners, the water table will rise for approximately 30 days and then return to the pre-liner level. The modified project will not lower the groundwater table outside of the project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Standard General Environmental Resource Permit No. 44011760.010.
