The Issue Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?
Findings Of Fact More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.) Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters. Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each 24 inches in diameter, in their stead, install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface, Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD. T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.
Recommendation It is, accordingly, RECOMMENDED: That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue. DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1992. APPENDIX Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material. With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law. Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to subordinate matters. Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue. With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed. With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding. With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12. With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts. Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard. With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill. The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material. With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD. With respect to the applicants' proposed finding of fact No. 9, the OHW is 45.7 feet NGVD. With respect to the applicants' proposed finding of fact No. 11, testimony so implied. With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy. The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters. With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm. With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill. With respect to DER's proposed finding of fact No. 3, backflows begin at 45.3 feet NGVD. With respect to DER's proposed finding of fact No. 4, not all fill would be removed. With respect to DER's proposed finding of fact No. 5, testimony so implied. With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm. DER's proposed finding of fact No. 7 is really a conclusion of law. With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions. DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material. DER's proposed finding of fact No. 13 is immaterial to the merits. COPIES FURNISHED: John A. Barley P.O. Box 10166 Tallahassee, FL 32302 Donna H. Stinson Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, FL 32301 Candi E. Culbreath Patricia Comer 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carlos Alvarez c/o Hopping, Boyd, Green & Sams 123 South Calhoun Street Tallahassee, FL 32301 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 24th day of October, 1983.
Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1981.
Findings Of Fact Petitioner Ronald T. Hopwood is president of Last Resort Fish Camp Association, Inc. (hereafter "Association"), the owner of Big Pine Island located in Lake County, Florida. Big Pine Island consists of approximately 26 acres of land above the mean high watermark and 166 acres of submerged and transitional zone lands. The Association's property is more accurately described by the Department's exhibit III, Map C. Petitioner Milan M. Knor submitted to the Department a dredge and fill permit application, File No. 35-20062-4E, to dredge 7,350 plus-or-minus cubic yards of fill material waterward of the lien of ordinary high water and adjacent to the Petitioner's uplands (Department's Exhibit 12). It is proposed that the fill material or spoil be deposited on the landward side of a perimeter canal which presently exists along the southwest one-third of the island. When the project is complete, the canal will encircle the entire island, the fill material resulting therefrom will be deposited on the island side of the perimeter canal below a 59.5-foot elevation (Department's Exhibit III, Map A). During the dredging, turbidity curtains would be utilized. As part of the project, Petitioners propose to install two (2) 42-inch diameter culverts at the east and west ends of a causeway which connects Big Pine Island to the mainland (Department's Exhibit III, Map B). The purposes of the proposed project are to improve the water quality of the adjacent canals and wetlands, provide fire protection, reduce algae blooms, and stabilize bottom sediments (Petitioners' Exhibit A, Department's Exhibit 1). The elevation of 59.5 feet above mean sea level was established by the St. John's River Water Management District as the ordinary high water elevation of Lake Griffin. The desirable levels of Lake Griffin vary between 58.07 and 59.38 feet. A dredge and fill permit was issued fro this project by the St. John's River Water Management District. In its final order granting the permit, the Governing Board of the District found, inter alia, that the water quality of the district would not be significantly diminished by the channelization of the marsh, that the new culverts would increase the rate of flow and the flushing of the marsh by providing increased northerly access for the water flow, that the excavation would enhance navigability and flow through the interior canal, and that the channelization would promote fire protection. The Board believed that the installation of the culvers ". . . will provide a positive benefit to the marshlands by correcting the prior damming effect of the causeway " (Petitioner's Exhibit D). The permit was issued by the Governing Board over the recommendation of its staff to deny the permit (Department's Exhibit 16). On July 26, 1979, Mr. James Morgan, a filed inspector with the Department, conducted an on-site field inspection of the proposed project. Mr. Morgan complied an appraisal report, Department's Exhibit 11, which evaluated the feasibility of extending the existing 1,200-foot canal by approximately 3,000 feet. Mr. Morgan found that a portion of the area to be excavated, approximately 600 feet, was previously cleared and vegetated by arrowhead (Sagittaria, Sp.), paragrass (Panicum purpurascens), bloodroot (Lacnanthes caroliniana) and sawgrass. 1/ Standing water was present in portions of the previously cleared area. The remaining 2,400 feet were in a natural state, dominated by willows (Tudwigia peruviana), wax myrtles (Myrica ceriferia), arrowhead and sawgrass. Surface waters of the Oklawaha River and Lake Griffin were present in part of this area; however, at the time of the field evaluation, Lake Griffin's surface waters were depressed by approximately six (6) inches below its established ordinary high water elevation. Raising the lake's elevation to its high water elevation, 59.5 feet, would result in the entire project site being inundated with surface waters. Dip net samples yielded organisms which constitute the lowest levels of an aquatic food chain including amphipods, dragonfly naiads, diptera larvae and mosquito fish. Mr. Morgan's report concluded that ". . . [d]ue to the severity of the anticipated impact of the proposed canal construction, no environmentally acceptable modification is available other than to permit the system to function naturally. . . ." This conclusion was based on the following negative aspects of the project. The collecting and storing of organic materials in the canal which would reduce the dissolved oxygen level during biodegradation to lethal levels for fish and other aquatic organisms; The physical alteration and elimination of a natural wetland community; The increase in turbidity during excavation; and The placement of spoil below the controlled elevation of Lake Griffin which would reduce the lake and river flood storage capacity as well as the area capable of supporting healthy aquatic plant and animal life. It was recommended that the proposed culverts be installed and that one canal- front lot be utilized as a common lot for all property owners, thereby providing open water access to all property owners. Lake Griffin is presently in a highly eutrophic stated caused by large amounts of algae growth and weeds in the water column. Agricultural farming, municipal sewage treatment plants, and citrus processing plants are among the sources of nutrients causing the high algae growth. The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level buildup in the system. By increasing the water flow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved. The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter similar to the human kidney by filtering deleterious substances from the surface water. Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklawaha chain of lakes by a series of control structures. This "backwater" effect, which is caused by movement in the Oklawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved. A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and the completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water lever maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of an existing berm. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two- culvert system proposed by the Petitioners would have a cosmetic effect and not significantly improve the natural water flow between the canals. If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself. The proposed filling of the island which is to occur below the 59.5- foot elevation will reduce the river's flood storage capacity and the area capable of supporting plan and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of low lying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose. Petitioners have not been denied the use of their property either by the Department's denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.
Recommendation Therefore, it is recommended that the Department issue a permit to Petitioners to complete construction of a perimeter canal surrounding Big Pine Island subject to the following conditions: That the applicants install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway. The number and size of the culverts or other structures will be determined by the Department. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below 59.5 feet in elevation. That the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process. DONE AND ORDERED this 25th day of August 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August 1980.
The Issue The issue to be determined in this case is whether All Aboard Florida – Operations, LLC (“the Applicant”); Ram Land Holdings, LLC (“RLH”); and J. Acquisitions Brevard, LLC (“JAB”), are entitled to the Environmental Resource Permit (“ERP”) issued by the St. Johns River Water Management District (“SJRWMD”) for construction and operation of certain railway facilities within the portion of the Florida East Coast Railway corridor known as Segment D08 (the “Project”).
Findings Of Fact The Parties The Petitioner is a water control district organized under chapters 189 and 298, Florida Statutes. It owns and maintains the North, Main, and South Canals in Indian River County. The Petitioner manages drainage works for approximately 55,000 acres within Indian River County situated west of the Indian River Lagoon between U.S. 1 and I-95, including portions of the City of Vero Beach. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company headquartered in Miami, Florida, formed for the principal purpose of developing and operating express passenger rail service connecting the four largest urban population centers in Southern and Central Florida--Miami, Fort Lauderdale, West Palm Beach, and Orlando. This project is known as the All Aboard Florida Project. Respondents, RAM Land Holdings, LLC, and J. Acquisitions Brevard, LLC, are third-party mitigation providers. The parties stipulated that RLH and JAB are not necessary parties to this proceeding. SJRWMD is an independent special district created by chapter 373, charged with the duty to prevent harm to the water resources of the District and to administer and enforce chapter 373 and the rules promulgated thereunder. The proposed project is within the boundaries of the District. The Proposed Project Most of the Applicant’s passenger service route, including the portion which will pass through Indian River County, will use an existing railroad right-of-way established in the late 1800s by Henry Flagler, the founder of the Florida East Coast Railway (“FECR”). The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It was designed to support passenger and freight operations on shared double mainline tracks and was in use from 1895 to 1968. The passenger service was then terminated and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The Project would restore the passenger service that once existed on the FECR rail corridor. The passenger service route will utilize the FECR right-of-way from Miami to Cocoa Beach and then continue along a new segment to be constructed along a limited-access highway system which runs inland from Cocoa Beach to Orlando. The Applicant is proposing to upgrade the portion of the FECR right-of-way between Miami and Cocoa Beach by, among other things, replacing existing railroad ties and tracks and reinstalling double tracks. This proceeding involves only Segment D08 of the proposed Project. Segment D08 runs from the southern edge of Indian River County to Cocoa Beach in Brevard County. In Segment DO8, the existing FECR railway includes bridges which cross the North Canal, Main Canal, and South Canal owned and maintained by the Petitioner. The bridges are referred to as the North Canal Bridge, the Main Canal Bridge, and the South Canal Bridge. Each bridge supports a single track. The Project calls for adding new bridges alongside the three existing bridges over the canals so that the crossings will again accommodate two tracks. The Petitioner’s objections to the proposed permit are confined to the proposed bridges at the North Canal and South Canal. The new bridge at the North Canal would be constructed along the west side of the existing bridge. The new bridge at the South Canal would be constructed along the east side of the existing bridge. Obstruction of Water Flow The Petitioner’s main objection to the proposed project is that the proposed new bridges over the North Canal and South Canal are too low to allow clearance during a 100-year storm event, which would cause water flow to be obstructed. The Petitioner believes floating debris is likely to be blocked and accumulate at the bridges, causing water to back up and flood lands upstream of the bridges. The Petitioner’s Superintendent, David Gunter, testified that there were “a couple of events where debris backed up either at a bridge or a culvert.” However, he said none of the Petitioner’s ratepayers ever had a flooding event that was attributable to the FECR bridges. The new bridges would be constructed with the same low chord/beam elevations (lowest part of the bridge) as the existing bridges that would remain. For the existing bridge and the proposed new bridge over the North Canal, the low beam elevation is 13.1 feet NAVD88 (North American Vertical Datum 1988). For the existing bridge and the proposed new bridge at the South Canal, the low beam elevation is 8.5 feet NAVD88. Because the proposed new bridges would be at the same height above the canals as the existing bridges, the potential problem the Petitioner is concerned about--floating debris being trapped by the bridges--is already a potential problem. The Petitioner did not claim or present evidence to show that the new bridges would increase the probability that floating debris would be trapped, over and above the current probability for such an event. The Petitioner argued that “two wrongs don’t make a right,” and the new bridges should not be approved even though they are at the same height as the existing bridges. Obviously, the Petitioner wants the existing bridges raised, too. Based on the FEMA Flood Insurance Rate Maps used by the Applicant, the 100-year flood elevation at the North Canal bridge is 11.5 feet NAVD88, or 1.6 feet below the low beam elevation of the North Canal Bridge. The 100-year flood elevation at the South Canal Bridge is 9.3 feet NAVD88, or 0.8 feet below the low beam elevation of the North Canal Bridge.1/ The Applicant’s consultants performed hydrologic and hydraulic analyses for the proposed new bridges using a HEC-RAS model which was adapted to local site-specific conditions and incorporated FEMA flood level data. They determined that in a 100-year storm event, the new bridge at the North Canal would cause no more than a 0.04-foot (0.48 inches) increase in water levels immediately upstream (within 500 feet) of the bridge, and the new bridge at the South Canal would result in no more than a 0.07-foot (0.84 inches) increase in water levels immediately upstream. These were considered insignificant impacts that would not cause flooding to upstream properties. The Petitioner disputes the Applicant’s determination that there is a 1.6-foot clearance at the North Canal Bridge and a 0.8-foot clearance at the South Canal Bridge. The Petitioner asserts that the FEMA elevations used by the Applicant are not based on the best available data, and the best available data show the 100-year flood elevations are higher. The Petitioner calculated higher 100-year flood elevations using SJRWMD flood stage gages in the canal near the North bridge and the Petitioner’s own hydrologic model. The Petitioner determined that the low beam at the North Canal bridge is 0.6 feet below the 100-year flood level, and the low beam at the South Canal bridge is 1.5 feet below the 100-year flood level.2/ In other words, the Petitioner contends there is no clearance. The Petitioner’s witness, Simons, testified about why he thought FEMA did not use the Petitioner’s water level data and analysis in determining 100-year flood elevations for the FEMA flood maps, but the testimony was largely hearsay. SJRWMD’s Applicant’s Handbook refers to the use of FEMA flood level data for these kinds of analyses, but it also refers to the use of “detailed information” possessed by SJRWMD. See Section 3.3.4, A.H., Vol II. Information possessed by SJRWMD would likely include data from their own water level gages. The Petitioner did not present sufficient evidence to prove their data and modeling was more accurate or reliable than FEMA data and the Applicant’s modeling. FEMA flood insurance rate maps are a standard reference in the industry. The HEC-RAS model is a generally accepted tool used by engineers for this kind of analysis. None of the parties presented evidence to make clear what is the usual or industry protocol for choosing between conflicting data of this kind in the permitting process. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. It is found, therefore, that the Applicant’s use of FEMA data and the HEC-RAS model was reasonable. The Petitioner admitted that the 100-year flood elevation in the canals has been increasing over time because of the conversion of land uses in the area from agricultural to urban. Because the Petitioner regulates discharges to its canals, it has some responsibility for the rising water levels in its canals. The Petitioner claimed that reduced clearance was due in part to the bridges from “age, use, lack of maintenance, frugality or causes other than design.” However, the Petitioner presented no supporting evidence for this allegation in the record. In its regulatory role, the Petitioner requires a minimum clearance of one foot between a bridge’s lowest horizontal beam and the 100-year flood elevation to avoid obstruction of water flow through the canals. SJRWMD rules do not specify that bridges be designed to have a minimum clearance above the 100-year flood elevation. The applicable design standards for flood protection in the Applicant’s Handbook are set forth in Section 3.3.2(b), A.H., Vol. II, which provides in pertinent part as follows: Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other water courses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource. It is presumed a system will meet this criterion if the following are met: * * * A system may not cause a net reduction in the flood conveyance capabilities provided by a floodway except for structures elevated on pilings or traversing works. Such works, or other structures shall cause no more than a one-foot increase in the 100-year flood elevation immediately upstream and no more than one tenth of a foot increase in the 100- year flood elevation 500 feet upstream. The bridges would not cause more than a one-foot increase in the 100-year flood elevation immediately upstream or more than one tenth of a foot increase in the 100-year flood elevation 500 feet upstream. Therefore, the Applicant is presumed to have provided reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property, or adversely impact the existing surface water storage and conveyance capabilities of the North Canal or South Canal. The Petitioner argues that the SJRWMD criteria fail to account for floating debris. The Petitioner claims that bridge designers are obliged to follow basic design guidelines published by FDOT and other government agencies and provide clearance for floating debris, but Petitioner did not offer into evidence these “basic design standards” or prove their industry- wide acceptance.3/ SJRWMD’s engineer, Fariborz Zanganeh, stated that the potential for floating debris to be blocked by a bridge or any other traversing work is considered by SJRWMD to be an operation and maintenance issue, not a design issue. The Petitioner referred to some road bridges in the area that, upon reconstruction, were raised by county, state, or federal governments to comply with the Petitioner’s clearance requirement. First, it is noted that the Applicant does not propose to reconstruct the existing North Canal Bridge and South Canal Bridge. Second, there is a substantial difference between the effort and cost of raising a road and raising a railroad track. Raising the proposed bridges would require elevating the railroad bed for a considerable distance in each direction so that slopes comply with railway safety criteria. The Petitioner failed to prove the Project does not comply with SJRWMD flood control criteria. The Sand Bar The Petitioner also objects to the proposed bridge at the North Canal because the Petitioner contends the existing bridge pilings have caused a sand bar to form, and shoaling and erosion would likely increase with construction of additional pilings. The Petitioner believes the problem is caused by the fact that the existing and proposed pilings, which would have the same alignment, are not parallel to water flow in the canal. There are sand bars upstream of the bridge which cannot have been caused by the bridge pilings. The North Canal, which runs downstream almost due east makes a turn to the northeast under the North Canal Bridge. The record evidence, as well as generally known facts of which the Administrative Law Judge may take official recognition, establish that a change in the direction of water flow in a channel creates non-uniform flow, which can cause erosion and shoaling. The Petitioner did not present evidence to distinguish between shoaling and erosion that could be caused by the pilings and shoaling and erosion that could be caused by the turn in the canal. The Petitioner did not call a witness for this subject who had special knowledge of the science of hydraulics and no study was done by the Petitioner to confirm its theory of the cause. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. The Applicant asserts that the conditions of the proposed permit provide for maintenance that would include “the removal of any buildup of siltation that might occur over time and potentially cause the North Canal Bridge structure to cease operating as designed.” However, whether the bridge is operating as designed would not address whether the canal is operating as designed because of shoaling. There is no condition in the proposed permit that imposes on the Applicant the duty to remove built-up sediment beneath the North Canal Bridge. It is unlikely that such a requirement can be imposed on the Applicant because it does not own or control the canal. The Petitioner claims the railroad authority denied the Petitioner access to the right-of-way when it sought permission in the past to remove the sandbar at the North Canal Bridge. Unfortunately, a permit condition that requires the Applicant to cooperate with the Indian River Water Control District in performing canal maintenance at the bridges is probably not enforceable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. 135214-2, with the conditions set forth in the Technical Staff Report dated August 26, 2016. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
The Issue Whether Respondent's statements as set forth in the First Amended Petition to Determine Validity of Agency Statements Defined as Rules are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner alleges that the following constitute agency statements defined as rules but not properly adopted as rules by the District: The District considers a particular parcel of property to be located within a "floodway" within the District's regulatory jurisdiction for Works of the District (WOD) permitting on the basis of the parcel being located within a floodway established pursuant to a currently-approved Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS). The District will not accept any alternative floodway boundaries that are inconsistent with those established in the FIS unless FEMA confirms that the alternative boundaries are more accurate than those obtained from the existing FIS, and FEMA approves the alternative boundaries through a formal approval process, such as a Letter of Map Revision that also requires local government concurrence. If the District determines the parcel to be within its regulatory floodway, it will require an Environmental Resource Permit (ERP) application for any development activities within the floodway, other than those entitled to a general permit under Rule 40B-4.3010, Florida Administrative Code. The District will require an ERP for the activities described in paragraph "c" notwithstanding the fact that the Department is evaluating those same activities as part of an ERP application that has been submitted to the Department of Environmental Protection (Department) for the same activity in the same location under the terms of the Operating Agreement.1/ The District will evaluate an application to conduct development activities as described in paragraph "c" based upon the full range of ERP permitting criteria contained in the District's rules, even though the Department is processing an ERP application for the same activities pursuant to the Operating Agreement between the District and the Department. The District's policy is to deny or to object to the issuance of any permit application to conduct commercial mining operations in the WOD composed of the Alapaha River floodway. It is the policy of the District to consider any proposed development activity in a WOD, other than those eligible for a general permit under Rule 40B-4.3010, Florida Administrative Code, to have an adverse impact on the regulatory floodway, and thereby to be unpermittable by the District. The District's policies against allowing development activities in WODs apply even if a professional engineer certifies under Rule 40B-4.3030, Florida Administrative Code, that the activity will not violate the conditions of issuance set forth in the rule. The policies apply because the District will consider the development activities to violate ERP permitting rules applicable to all development activities, not just those within WODs. It is also the District's policy to ask the Department to deny ERP applications for development activities proposed in WODs that require ERPs even though the Department is processing the application pursuant to the Operating Agreement. The District's policy is to deny ERP applications to conduct commercial mining activities in WODs as determined by the FIS, and to recommend to the Department that ERP applications to the Department for such projects be denied, unless the applicant goes through the FEMA amendment process described in paragraph b to remove the area from the FEMA- determined floodway. Each party requests that it be granted costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes. Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. Respondent 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 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 Suwannee River Water Management District and Department of Environmental Protection (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 WOD impacts. It is the District's position that the District's review of any ERP application to undertake development activities in a WOD would be based upon all of the ERP criteria, and not just those criteria relating to floodway conveyance referenced in Rule 40B-4.3030, Florida Administrative Code. On or about November 30, 2001, the District published in the Florida Administrative Weekly a notice of its intent to adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate floodways for the purpose of its works of the district regulatory program. Facts Based on Evidence of Record Background/Events leading up to this dispute The total amount of the subject property owned by Petitioner is approximately 560 acres. The property is generally a rolling terrain. A significant feature is a man-made berm which was placed around the perimeter of the property by a former owner, presumably to keep water off of the land during floods of the Alapaha River. Dennis Price is a self-employed registered professional geologist. At one time, he was employed by the District and at another time, he was employed by Petitioner. For purposes of this proceeding, he was hired by Petitioner as a consultant for certain permitting projects including the project that gave rise to this dispute. Mr. Price met with and corresponded with the District as well as staff from the Department over a period of two years regarding this mining project. In June of 1999, the Department wrote to Mr. Price in response to a meeting. The letter noted that Petitioner intended to expand mining operations. In addition to informing Mr. Price of the Department's permit requirements, the letter referenced the District's permitting requirements: Mr. Still provided us with an aerial photograph showing the SRWMD's regulated floodway in the area of your mine. A copy is enclosed with the floodway line highlighted in orange. A substantial portion of your proposed expansion area will be within this floodway. The SRWMD has adopted the Alapaha River and its floodway as a works of the district. The Department adopted the SRWMD's regulations pertaining to the environmental resource permit; however, this did not include the regulations pertaining to projects within works of the district. If your permit application only includes areas outside of the floodway, a single application will have to be provided to this bureau. If you intend to expand within the floodway, a separate application will also have to be provided to the SRWMD for a works of the district permit. In either situation, the Department's Jacksonville office will review any modifications to your industrial wastewater permit. (emphasis supplied)2/ In response, Mr. Price wrote to the Department in July of 1999 and stated in pertinent part: Dear Mr. Neel, this letter is in response to your June 22, 1999 letter "RE: Permits for Mining Operation". Angelo's currently has a Sand and Limestone General Permit from DEP - General Permit Number FLA011635. That permit is based on a 5 year mining plan that was presented to the DEP on January 11, 1999. The permit, my letter and the 5 year mining plan presented to DEP are enclosed. Another attachment is an aerial photo of the property showing the Regulatory Floodway line and the location of the areas to be mined under that 5 year mining plan. The aerial photograph has superimposed upon it the location of the floodway of the Alapaha River, as determined by FEMA maps. Please note that the 5 year mining plan and the associated storage and processing areas are outside the regulatory floodway. Therefore, no works of the district permit will be needed at this time. See FAC Rule 40B-4.300(1)(a) [sic]. Future mining beyond the five year mine plan will not occur without first applying for and obtaining permits from the appropriate regulatory agency. At the present time we will only mine areas within the 5 year mine plan. We will have an engineer field locate the floodway line on the property to ensure that no mining or associated storage and process activities occur within the floodway. We are requesting that the ERP permitting process remain within the DEP bureau of Mine Reclamation since the DEP has already issued a general permit for this activity and the DEP normally handles ERP's for mining operations. We have determined that the mining area will be less than 100 acres, and based on Rule 40B-4.2020(2)(B) FAC a general permit may be applied for. We will notify you when we have a draft application prepared and would like to meet with you at your earliest convenience after that to discuss the permit application. (emphasis supplied) In response to information which Mr. Price provided to the Department, the Department wrote to Mr. Price in December of 1999 and again addressed concerns about the area of the project in relation to the floodway line: Specific Item: FLOODWAY Information submitted in response to the request for additional information (RAI) dated August 12, 1999, indicates that Angelo's proposed project boundary and activities extend up to and coincide with the Floodway Line. There appears to be no set-back or buffer from the Floodway (or any other) Line. Chapter 40B-4, Florida Administrative Code (F.A.C.), contains the rules for the Suwannee River Water Management Area which were adopted by the Department of Environmental Protection. Section 40B-4.2010(2)(b)(3)(b) provides that a General Permit may be issued for construction, operation, and maintenance of a surfacewater management system servicing a total project area less than 120 acres provided the system will not be located in, cross or connect to a work of the district. Information submitted with this (November 12, 1999) submittal indicates that the proposed activities within the proposed project coincides with, or is so closely located to, the Floodway Line so as to indicate that the proposed activities would be considered to be connected to a work of the district. This is based upon examination of the plan views and [sic] well as cross section information that has been provided. Please provide a discussion, and drawings as may be needed, that addresses all activities along the established Floodway Line. This information should address all aspects of all operations along this line through the completion of reclamation activities. Be sure to address best management practices, and any proposed setbacks in the response to this request. (emphasis in original)3/ Mr. Price described the proposed project as part of the permit application which was submitted to the Department: Describe in general terms the proposed project, system, or activity. Angelo's Aggregate Materials, Ltd. (AAM) owns approximately 341 acres of land. The current mining site, known as the Jasper Pit, is located on a 160 acre parcel of land. Of the 160 acres, only 82.45 acres are available for mining since the remainder of the property falls within the floodway boundary of the Alapaha River. The 160 acre parcel has an existing berm around the entire perimeter of the property constructed in the 1950's by the previous owner. The Alapaha flood study conducted for FEMA did not take into account this berm. AAM is proposing to construct a 20' wide access road between NW 8th Boulevard and the Jasper Pit, encompassing approximately 7.22 acres. This roadway will be constructed within the limits of property owned by AAM. The stormwater management system for the roadway will consist entirely of grassed swales as covered under FDEP's swale exemption. The Jasper Pit is a sand and limestone mining operation. (emphasis supplied) On August 28, 2001, David Still, the District's Director of Resource Management, wrote a letter to the Department in response to a request received by e-mail from the Department for technical assistance. Mr. Still responds to requests for technical assistance from other agencies as a matter of routine and as contemplated by the operating agreement between the Department and the District. The letter reads as follows: The floodway along the Alapaha River was identified and mapped as part of a Federal Emergency Management Association (FEMA) flood study performed by the United States Army Corps of Engineers, subsequently approved by FEMA and adopted as part of the local government (Hamilton County) ordinance. Based on the above, Suwannee River Water Management District (SRWMD) then adopted the floodway as a Work of the District (WOD). There is only one floodway. SRWMD recognizes and accepts the FEMA flood study performed by the U.S. Army Corps of Engineers and local government (Hamilton County) floodway boundary as the best available information to identify the floodway boundary. There is a formal process whereby change can be made to the FEMA boundary with additional or improved information. If FEMA and Hamilton County approve a revised floodway delineation and boundary, so be it, SRWMD will recognize it, however, SRWMD will not unilaterally change a boundary resulting from a detailed federal flood insurance study. We have informed Mr. Thompson and his client of this. We consider the kind of work contemplated by the applicant (at least based on our earliest discussions with them) will cause an adverse impact to the WOD (the floodway) which of course is in conflict with the requirements of 40B-400.103(1)(h) and SRWMD 40B-4, Part III, Florida Administrative Code (F.A.C.). The District will object to the issuance of any permit in direct conflict with District rules. We feel the rule is clear and any conflict with 40B-400.103(1)(h), F.A.C. which the Florida Department of Environmental Protection has adopted by reference requires denial of the Environmental Resource Permit (ERP) application. Any work of this nature within a WOD is subject to the additional permitting requirements of 40B-4, Part III, F.A.C., even if the District needs to implement such requirements with a separate WOD permit. Mr. Still's reference to "the applicant" in the August 28, 2001, letter is to Petitioner. While Mr. Still is not the agency head, his August 28, 2001, letter clearly communicates the District's policy. Given his position in the agency and the manner in which he discussed this issue, the letter describes and communicates the District's policy on what constitutes a floodway and its boundary. Mr. Still does not have final authority to make decisions on permitting within the District, as that authority rests with the governing board. In a letter written on October 10, 2001, in response to a letter from Petitioner's counsel, Mr. Still stated that District staff would recommend to their governing board that Petitioner's proposed activity is an activity within a floodway that is regulated under Chapter 40B-4, Part III, Florida Administrative Code, and that the proposed activity would adversely impact the floodway: "Therefore, as staff, we would recommend our governing board consider this activity adverse to our rules." This letter is case specific to Petitioner. Within a few days of Mr. Still's October 10, 2001, letter, Petitioner filed its Petition to Determine Validity of Agency Statements Defined as Rules. Other facts established by the evidence of record The District uses FEMA FIRM maps as evidence of the location of the floodways in the works of the district. The District communicated this policy in Mr. Still's letter dated August 28, 2001. The District will not unilaterally change the floodway delineation and boundary established by FEMA. In order for an applicant to persuade the District that a proposed activity within the FEMA floodway line is not within the District's floodway, an applicant must apply to FEMA for a map amendment or revision. The District will acknowledge that a proposed activity is not within the floodway of a work of the district only if the applicant is successful in obtaining a map amendment or revision showing that the proposed activity indeed is not within the floodway. The District has applied this policy to another company which applied for a permit. That is, the District required the permit applicant to apply to FEMA for a map revision or amendment as a condition of issuance of a permit because its proposed activity was within the FEMA floodway as established by the FEMA maps. Petitioner has not filed a permit application with the District regarding the proposed mining project. It is Petitioner's position that to do so would be futile.
The Issue The issue for disposition in this proceeding is whether, as alleged in an administrative complaint dated February 20, 1998, Respondent Craig J. Evans committed negligence in the practice of engineering when he erroneously determined that a real property parcel was not within the flood protection zone. If that violation occurred, an appropriate penalty must be recommended.
Findings Of Fact Respondent Craig J. Evans is and has been at all material times a professional engineer licensed in the State of Florida with license no. PE 0033652. He is currently practicing as a professional engineer, and is licensed as such, in St. Croix, U.S. Virgin Islands. In the approximate 15 years that Mr. Evans has been licensed as a professional engineer, the instant proceeding is the first disciplinary action or allegation of professional wrong-doing. In October 1992, Mr. Evans was engineer of record for a residence being built for his father on a parcel now designated as 1588 Chadwick Way, Tallahassee, Florida. On or about October 10, 1992, Mr. Evans signed and sealed a Leon County Flood Protection Certification for the Chadwick parcel in Killearn Lakes, Unit 3, Lot 3, Block B M. This certification was a necessary component of the local permitting process. In the certification Mr. Evans stated that the parcel was at or above the flood protection elevation. After the certificate was filed and the building permit was issued, Fred Varn, then a Leon County building inspector, spoke to Mr. Evans about the inspector's concern that the floor level of the house might be too low. Mr. Varn was aware that some other properties in the area had flooded. Mr. Evans responded that he felt the level was safe, but he was willing to listen and he raised the floor level approximately 16 inches. The house was built and Mr. Evans and his parents lived in it for a short time. It rained during that time and according to Mr. Evans, there was a little bit of flooding on the front of the property and a little of standing water in the back, but neither lasted long. Mr. Evans' parents put the Chadwick house on the market and Mr. and Mrs. George Simonof expressed an interest in purchasing it. In response to the Simonof's surveyor's concerns about flooding, Mr. Evans or his father faxed the October 10, 1992, certification to the Simonofs on June 30, 1994. The Simonofs, in turn, provided the certification to their surveyor and lender. On July 14, 1994, the Simonofs closed on their purchase of the Chadwick house. In early October 1994, Tallahassee experienced severe rainstorms. Between October 6-12, 1994, the Simonof's property on Chadwick flooded. With the help of friends and neighbors, they filled sandbags and placed them around the house. The house did not flood but the backyard was filled with standing water. Contrary to Mr. Evans' certificate, the property on Chadwick is within the flood protection zone. When he determined the location of the flood zone, Mr. Evans scaled from Federal Emergency Management Area (FEMA) maps to a plat map showing the lot's location. He erred in the plotting process, a common error, but one that a prudent engineer would be more careful to avoid. Initially, the Chadwick property appeared to Mr. Evans to be in the flood zone, so he rechecked his work by pulling certificates on two lots nearby and found they were not certified in the flood zone either. He was somewhat familiar with the property as he used to jog in the Killearn area. He had no personal knowledge of flooding there prior to his certification. Mr. Evans did not exercise due care in preparing his flood zone certification and was negligent in the practice of engineering. If he had checked his plotting, he would have realized there should have been more distance between his 2100 and 1600 feet lines. Further, in close cases, a survey should have been obtained. It was not sufficient that Mr. Evans attempted to check his work against two certifications of other lots in the area; he did not know the engineers who did the work and could not be certain of their certificates' relevance or accuracy. He did not speak with other property owners in the area nor did he seek information from Leon County staff who would be familiar with flooding problems. To Mr. Evans' credit he raised the house elevation upon query by the building inspector and the house did not flood. However, the buyers of the property relied on his erroneous certificate and suffered some loss due to the flooding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Engineers issue its Final Order finding Craig Evans guilty of negligence and assessing a fine of $750. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 30th day of December, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Department of Business and Professional Regulation Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0750 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Post Office Box 10426 Tallahassee, Florida 32302-0426
Findings Of Fact The Petitioner Kirchhoff owns property bounded by the St. Johns River, and by U.S. Highway 17 and 92 in Seminole County, Florida. A legal description of the property is set out on a plat of survey which was received in evidence as Petitioners Exhibit 3. The state has recently constructed a boat ramp in close proximity to the property. The Petitioner Glover proposed to Kirchhoff that the land be developed as a fish camp. Petitioners were successful in getting the land zoned in order to allow for construction of a fish camp. A one quarter acre plot within the land owned by Kirchhoff was designated by the Petitioners as the site for their proposed fish camp. Much of this one quarter acre is low and wet, and a landfill is essential to Petitioners' plans. Petitioners' landfill and construction plans are described in the original application which Petitioners submitted to the Respondent. The application, and attached drawings show an approximately 100' x 100' landfill. The location of the landfill is marked with a red pencil on the aerial photograph map which was received in evidence as Petitioners' Exhibit 1. The major portion of the landfill would be used for parking purposes, and a 30' x 60' building would be constructed 20' from the waterward edge of the fill. The fill would cover a portion of the flood plain of the St. Johns River and would average 4 to 6 feet in depth. The flood plain along the bank of the St. Johns River in the area of the Petitioners' proposed landfill is approximately 1800 feet wide. U. S. Highway 17 - 92 has cut off approximately 1400 feet of the flood plain from the river itself. The portion of the flood plain immediately adjacent to the river, which is bounded by the highway and the river, is dominated by phragmites reeds, willows and cypress. The uplands of the proposed project is limited to the filled roadbed of highway 17-92. The landfill would merge with the highway roadbed, and would primarily cover wetlands within the St. Johns River flood plain. Such wetlands as the Petitioners proposed to fill provide a habitat and breeding grounds for many varieties of fish, shrimp, and anthropods. During the early stages of their lives many varieties of fish including bluegills, bream, sunfish, bass, and catfish live in such an area in order to hide from larger creatures. The wetland vegetation provides an essential part of the food chain for aquatic wildlife in the St. Johns River. The marsh vegetation also provides filtration from upland runoff. Runoff from the highway is filtered to a great extent by the marsh vegetation before it is received in the St. Johns River. The filling of such a marsh area would have an adverse impact upon the quality of water in the St. Johns River because of loss of the filtering effect of marshland vegetation. Furthermore, the construction of a commercial fishing camp would add additional runoff. The filtration effect provided by the landfill itself could not compensate for the loss of filtration from the marshland vegetation. The project proposed by the Petitioners encompasses only one fourth acre of the St. Johns River flood plain. The loss in wildlife habitat, and in filtration provided by wetland vegetation from this single project may be negligible, and not subject to accurate measurement. It is clear, however, that the project would provide an adverse affect, albeit slight, and that any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Findings Of Fact Application No. 24457 requests the annual diversion, by means of the installation of two wells approximately 8 inches in diameter and 40 feet deep, of 940 acre-feet of ground water for supplemental irrigation of two parcels of land totaling 500 acres. This land is used for growing hay. Received into evidence without objection were the notice of public hearing appearing in The Palm Beach Post, West Palm Beach, Florida, the application in question and the Staff Report of the Central and Southern Florida Flood Control District (FCD), prepared by Bruce L. Cutright with the Hydrology Division of the FCD. The Staff Report, attached hereto, recommended the approval of the application for 600 acre-feet per year subject to certain conditions. At the beginning of the hearing, Mr. Worthington, the applicant, stipulated to the Staff Report and did not present any evidence on his own behalf. Mr. Bruce Cutright was called as a witness by the FCD and testified that he prepared the Staff Report and testified as to its contents. Mr. Cutright reviewed the subject application and determined that agricultural production and irrigation is a reasonable and beneficial use. In determining the actual annual water requirements needed, Mr. Cutright compared three numbers and selected the smallest of the three as the allocable amount. The three compared were the amount requested by the applicant, the FCD's estimate of the amount of recharge entering the shallow aquifer on the applicant's property, and the supplemental crop requirement for hay. It was determined that the water crop for the 500 acres in question is 14.4 inches, or 600 acre-feet or 195.5 million gallons per year. It was recommended that the maximum monthly withdrawal be 211.5 acre-feet or 68.9 million gallons. This amount was based upon the crop requirement during the driest month of a 2 in 10 year drought, assuming an 80 percent irrigation efficiency. The recommendations further included a maximum installed capacity of two wells with a combined capability of 3,500 gpm, with the applicant to submit well completion reports and detailed information on each well immediately upon completion; monthly records of pumpage to the FCD once a year at the end of each irrigation season and that the permit expire on October 15, 1978.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that Application No. 24457 be granted and that a permit be issued in accordance with the recommendations set forth in the Staff Report, attached hereto. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1975. COPIES FURNISHED: John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida Mr. Ed W. Worthington Route 3, Box 239A Lake Worth, Florida 33460
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten- year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
