Findings Of Fact Parties Respondent Sun East is a corporation who seeks to create a Planned Unit Development, PUD 89-25, on its property located in Polk County, Florida. Petitioner Hirt owns and resides on property adjacent to the Planned Unit Development. The only geographical boundary between the proposed project and Petitioner's property is Watkins Road. Respondent SWFWMD is the water management district with permitting authority over the 5.36 acres involved in the permit application which is the subject of these proceedings. Jurisdictional Areas of Controversy Respondent Sun East began the application process for a surface water management general construction permit from SWFWMD for Phase I of its proposed development of PUD 89-25 on July 1, 1991. SWFWMD determined the application was complete on July 24, 1991. The permit which was issued the next day authorized Respondent Sun East to perform the work outlined in the permit and shown by the application, approved drawings, plans, and other documents on file with SWFWMD. Petitioner Hirt timely filed a formal administrative complaint in which he disputed the appropriateness of the permit issued. In support of his position, Petitioner identified a number of areas of controversy and alleged that the application and review process was insufficient. Petitioner's allegations in his complaint, which are properly before the Hearing Officer, are as follows: The approved surface water management system will cause surface water runoff from the project to flood Petitioner's property. One potential cause of such anticipated flooding is the lack of proper percolation design in the surface water management storage areas. Contrary to permit representations, the property and the retention pond required by SWFWMD are in the 100 year flood plain. The project is in an environmentally sensitive area. Respondent Sun East has neither complied with all local requirements nor obtained all necessary federal, state, local and special district authorizations prior to the start of any construction authorized by the permit. Site Information The parcel of land on which the project will be located lies partially within the geographical limits of the South Florida Water Management District (SFWMD). The remaining land lies within the boundaries of the Southwest Florida Water Management District. Originally, SFWMD gave Respondent Sun East a permit to construct Phase I of the project, along with conceptual approval for Phase II. The decision by Sun East to file the application for a surface water management general construction permit with SFWMD instead of SWFWMD was based upon advice from personnel at SWFWMD. When it was later determined that SWFWMD would need to review an application for Phase I in order for the project to be properly permitted, SWFWMD acted quickly to reduce any potential delay to the project which could be attributed to its prior incorrect jurisdictional analysis. The agency's efforts were unrelated to any political connections or family relationships the former landowner, Jack Watkins, may have with past or current members of the Florida Legislature or Congress. The grading plan for Phase I of the project coupled with the pre- development and post-development 25 year storm event analysis, assessed drainage concerns associated with Phase I of the PUD. Water flow analysis for the site that considered existing conditions and proposed improvements, demonstrates that the property west of Watkins Road is not part of the surface water management system for this project. The cross drain beneath Watkins Road to the south of the proposed project deals with a different, natural conveyance system to Lake Pierce which is utilized by property owners such as Petitioner Hirt on the east side of the roadway. The proposed surface water management system for Phase I will not affect the drainage conveyance system utilized by property owners on the east side of Watkins Road. The stormwater management collection and conveyance system for Phase I was designed to convey the stormwater runoff from a 25 year 24-hour rainfall event, as required. It was not overdesigned to deal with a more intense, longer rainfall or storm event. Essentially, stormwater treatment and attenuation will be provided by the two proposed detention ponds A & B, as depicted on the site plan. Runoff from the first inch of rainfall will be filtered through a proposed side berm filter system in Pond A. The Polk County Soil Survey and field observations were used to assist in the weir control structure design. The weir was designed to restrict the post-development 25 year discharge to the pre-developed 25 year runoff rate. The project does not rely on percolation to offset post-development changes in the surface water management system design. As a result, percolation rates are not a factor to be dealt with in a design review. Flood Plain The 100 year elevation of 79 feet above mean sea level delineates the 100 year flood plain on the property in Phase I. According to the contour map, the existing Ponds 1 and 2 have depression contours below the flood plain. The water level in Existing Pond 1 is 78.24 feet. The water level in Existing Pond 2 is 78.14 feet. These ponds are not a major or significant part of an existing, natural surface water storage system in the area. They are just minor surface depressions. None of the lots contained in Phase I encroach upon the 100 year flood plain level. Environmental Concerns The parties stipulated at hearing that SWFWMD rule criteria relating to wetland and natural resource impacts were met by Sun East's general surface water management permit application. Local Requirements Prior to making application to SWFWMD for a permit in this case, Respondent Sun East obtained approval for Phase I of PUD 89-25 from Polk County. Since that time, the zoning approval was quashed by the circuit court. Respondent Sun East was ordered to obtain the SWFWMD permit before reapplying for zoning approval. The limiting conditions which are part of the permit issued by SWFWMD state: The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. The permit limiting conditions do not require that all other permits be acquired prior to the application for this permit. Instead, the limiting conditions advise that all other necessary permits must be acquired prior to construction or alteration of works begun pursuant to this permit. Petitioner began construction authorized by the permit after SWFWMD issued its permit approval on July 25, 1991. The Petitions for Certiorari on the final approval for Phase I from Polk County was already filed when the application for a permit from SWFWMD was requested by Sun East. The completed application does not reflect that the Polk County zoning approval was being challenged, and SWFWMD was not made aware of the possibility that it could be overturned at a later date. The permit issued by SWFWMD was timely challenged by Petitioner, before the approval became final agency action. Sun East did not comply with the limiting condition in the permit that requires a permittee to obtain all necessary authorizations prior to construction as the zoning approval was still unsettled when construction began. Petitioner's challenge to the SWFWMD permit was filed in good faith as numerous disputes of fact existed regarding this permit prior to resolution in this Recommended Order. Based upon the information and documentation given to Petitioner when the permit was issued, it reasonably appeared that his substantial interests were affected by the proposed drainage plan associated with the development.
Recommendation Based upon the foregoing, it is RECOMMENDED: That SWFWMD issue the general construction permit for the surface water management system for Phase I, within the limits indicated in the intent to issue, subject to conditions contained therein. That SWFWMD initiate an inspection of the stormwater management system at its expense to ensure conformity with the approved plans and specifications. That appropriate action be taken under Chapter 373, Florida Statutes, to prevent the continued violation of the limiting condition in the permit relating to construction starts. RECOMMENDED this 24th day of March, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 24th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5689 Joint Proposed Findings of Fact filed by Respondents are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #2. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. Accepted. See HO #20. Accepted. Accepted. Accepted. Accepted. See HO #19. Accepted. See HO #19. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #25. Accepted. Accepted. Accepted. Rejected. Irrelevant Rejected. Contrary to fact. See HO #28. COPIES FURNISHED: ROBERT PERSANTE ESQ MERKLE & MAGRI 7650 W COURTNEY CAMPBELL CAUSEWAY - STE 1120 TAMPA FL 33607 ANDREW R REILLY ESQ REILLY & LASSEIGNE PO BOX 2039 HAINES CITY FL 33845 EDWARD B HELVENSTON ESQ DEPUTY GENERAL COUNSEL SOUTHWEST FL WATER MANAGEMENT DISTRICT 2379 BROAD ST BROOKSVILLE FL 34609 6899 PETER G HUBBELL/EXECUTIVE DIRECTOR SOUTHWEST FL WATER MANAGEMENT DISTRICT 2379 BROAD ST BROOKSVILLE FL 34609 6899 CAROL BROWNER/SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue The issue to be determined in this case is whether Respondents, United States Sugar Corporation (“USSC”), Sugar Farms Co-op (“SFC”), and Sugar Cane Growers Cooperative of Florida (“SCGC”) (collectively “the Applicants”) are entitled to the Everglades Works of the District permits (“WOD Permits”), issued to them by the South Florida Water Management District (“District”).
Findings Of Fact The Parties Audubon is a not-for-profit organization dedicated to restoring and conserving natural ecosystems, focusing on birds and their habitats. Audubon has a substantial interest in the protection of the Everglades and other ecosystems in the area. Audubon’s interest is affected by the proposed agency action because the WOD Permits authorize agricultural discharges that affect these ecosystems. The District is a Florida public corporation with the authority and duty to administer regulatory programs in chapter 373, and Florida Administrative Code Title 40E, including a program for regulating discharges from the Everglades Agricultural Area (“EAA”) into works of the District. The EAA is located south of Lake Okeechobee and comprises about 570,000 acres. The majority of EAA agriculture is sugarcane, with some row crops, such as radishes, leafy vegetables, and corn, and turf sod. During fallow periods, rice is also grown. The Applicants are owners and lessees of agricultural lands in the EAA. Background Some essential background for this case is set forth in rule 40E-63.011: The Everglades is a unique national resource. It has a high diversity of species, and provides habitat for large populations of wading birds and several threatened and endangered species, including wood storks, snail kites, bald eagles, Florida panthers, and American crocodiles. Large portions of the northern and eastern Everglades have been drained and converted to agricultural or urban land uses. Only 50% of the original Everglades ecosystem remains today. The remainder is the largest and most important freshwater sub-tropical peatland in North America. The remaining components of the historic Everglades are located in the Water Conservation Areas (WCAs) and Everglades National Park (ENP). ENP and Loxahatchee National Wildlife Refuge (WCA 1) are Outstanding Florida Waters, a designation which requires special protection for the resource. Large portions of the Everglades ecosystem have evolved in response to low ambient concentrations of nutrients and seasonal fluctuations of water levels. Prior to creation of the Everglades Agricultural Area (EAA), nitrogen and phosphorus were mainly supplied to large areas only in rainfall. Phosphorus is the primary limiting nutrient throughout the remaining Everglades. Sawgrass has lower phosphorus requirements than other species of Everglades vegetation. A substantial portion of EAA nutrients is transported to the remaining Everglades either in dissolved or in particulate form in surface waters. The introduction of phosphorus from EAA drainage water has resulted in ecological changes in substantial areas of Everglades marsh. These changes are cultural eutrophication, which is an increase in the supply of nutrients available in the marsh. The increased supply of phosphorus in Everglades marshes has resulted in documented impacts in several trophic levels, including microbial, periphyton, and macrophyte. The areal extent of these impacts is increasing. In 1988, the United States sued the District and the Florida Department of Environmental Regulation, now the Department of Environmental Protection (“DEP”), in federal court, alleging that the agencies failed to enforce Florida’s water quality standard for nutrients in waters of Loxahatchee Wildlife Refuge and Everglades National Park. The principal pollutant of concern was phosphorus. Audubon, USSC, and certain members of SCGC and SFC intervened in the federal case. In February 1992, the parties resolved their dispute through a settlement agreement approved by the federal court (“the Consent Decree”). The Consent Decree required the District and DEP to take action to meet water quality standards by December 31, 2002. At that time, the nutrient water quality standard was a narrative standard, prohibiting the discharge of nutrients so as to cause “an imbalance in natural populations of aquatic flora and fauna.” The Consent Decree directed the District to construct 34,700 acres of stormwater treatment areas (“STAs”) so that nutrient-laden surface water discharged from the EAA could be treated before discharge to the Everglades Protection Area (“EvPA”), which includes Loxahatchee Wildlife Refuge, Everglades National Park, and the Water Conservation Areas. STAs are large freshwater wetlands which remove phosphorus from the water column through physical, chemical, and biological processes such as sedimentation, precipitation, plant growth, and microbial activity. The first STAs were constructed and in operation in 1993. The Applicants operate in the S-5A Basin within the EAA. Their surface water is conveyed to STA-1W for treatment before being discharged to the EvPA. The Consent Decree required the District to initiate a regulatory program by 1992 to require permits for discharges from internal drainage systems (farms) in the EAA. The regulatory program was to be based on agricultural best management practices (“BMPs”). The goal of the program, as stated in the Consent Decree, was to reduce phosphorus loads from the EAA by 25 percent over the base period (1979-1988). In 1992, the District promulgated rule chapter 40E-63, which required EAA farmers to obtain WOD permits and to implement agricultural BMP plans. The BMP plans address fertilizer use and water management. Permittees must also implement a water quality monitoring plan. The rules require reduction of the total phosphorus loads discharged from the EAA Basin, as a whole, by 25 percent from historic levels. See Fla. Admin. Code R. 40E-63.101. If the EAA, as a whole, is in compliance, individual permittees are not required to make changes to their operations. See Fla. Admin. Code R. 40E-63.145(3)(d). If the 25 percent reduction requirement is not met, the rule contemplates that individual permittees in the EAA would have to reduce nutrient loads in their discharges. See Fla. Admin. Code R. 40E-63.145(3)(e).1/ The Consent Decree also required the District to obtain permits from the Department for discharges from the STAs to the EvPA and to conduct research and adopt rules to “numerically interpret” the narrative standard. In 1994, the Florida Legislature enacted the Everglades Forever Act (“the Act”), chapter 94-115, Laws of Florida, which is codified in section 373.4592. The Legislature authorized the district to proceed expeditiously with implementation of the Everglades Program. See § 373.4592(1)(b), Fla. Stat. The “Everglades Program” means the program of projects, regulations, and research described in the Act, including the Everglades Construction Project. The Everglades Construction Project involved the construction of 40,452 acres of STAs, which is 5,350 acres more than was required by the federal Consent Decree. The Act acknowledged the BMP regulatory program for the EAA that the District had established in rule chapter 40E-63, and stated: Prior to the expiration of existing permits, and during each 5-year term of subsequent permits as provided for in this section, those rules shall be amended to implement a comprehensive program of research, testing, and implementation of BMPs that will address all water quality standards within the EAA and Everglades protection Area. See § 373.4592(4)(f)2., Fla. Stat. The Act required DEP to issue permits to the District to construct, operate, and maintain the STAs. See § 373.4592(9)(e), Fla. Stat. The Act required development of a numeric water quality phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e), Fla. Stat. The Act set the goal of achieving the phosphorus standard in all parts of the EvPA by December 31, 2006. In June 1995, modifications were made to the Consent Decree. The deadline for achieving water quality standards in the EvPA was changed from December 31, 2002, to December 31, 2006. The STAs were increased from 34,700 acres to 40,452 acres. The chronological developments outlined above indicate the intent of the Legislature and the parties to the Consent Decree to conform state law and the Consent Decree to each other. In 2001, DEP initiated rulemaking that lead to its adoption of the Phosphorus Rule, rule 62-302.540, in 2003. The rule set a numeric phosphorus criterion for the EvPA of 10 parts per billion (“ppb”), applied through a four-part test in which attainment is determined separately for “unimpacted” and “impacted areas” of the EvPA. See Fla. Admin Code R. 62- 302.540(4). In conjunction with this rulemaking, the DEP and District developed the Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals (“Long- Term Plan”) in March 2003. The Long-Term Plan provided remedial measures and strategies divided into pre-2006 projects and post- 2006 projects. The pre-2006 projects included structural and operational modifications to the existing STAs, implementation of agricultural and urban BMPs in areas outside the EAA or C-139 basins, and construction of several restoration projects congressionally mandated by the Comprehensive Everglades Restoration Plan. Modeling of treatment capabilities of the STAs after implementation of the pre-2006 projects predicted that the 10 ppb standard for phosphorus could be achieved, but not consistently. Therefore, the Long-Term Plan required the District to identify and evaluate methods to improve phosphorus reductions, and if the phosphorus criterion was not achieved by December 31, 2006, to implement post-2006 modifications and improvements. The post- 2006 strategies include projects to expand and improve the STAs. They do not include changes to the BMP program. In 2003, the Legislature substantially amended the Act. It incorporated the Long-Term Plan into the Act, finding that it “provides the best available phosphorus reduction technology based on a combination of the BMPs and STAs.” § 373.4592(3)(b), Fla. Stat. The Long-Term Plan contemplates maintenance of the BMP program in the EAA, with refinements derived from BMP research. Recent Conditions and Events As previously stated, chapter 40E-63 requires the total phosphorus load from the EAA to be reduced by not less than 25 percent from historic levels. Since full implementation of the BMP regulatory program, annual phosphorus loads have been reduced by approximately 50 percent. Despite the efforts and projects undertaken, the phosphorus standard was not being achieved as of December 31, 2006, in all parts of the EvPA. In 2007, the DEP issued a permit to the District for discharges from the STAs to the EvPA (referred to as the “Everglades Forever Act” or “EFA permit”). The permit required the District to design and construct several regional water management projects, including structural enhancements to STA-1W, and the construction of 6,800 acres of additional STAs. The permit and its compliance schedules provided interim relief through 2016 from the water quality based effluent limitation (WQBEL) necessary to achieve the 10 ppb phosphorus standard. The 2007 EFA permit was not challenged by Audubon or any other entity. The District, DEP, and the United States Environmental Protection Agency began working together in 2010 to develop new strategies for achieving compliance with the phosphorus standard in the EvPA. The agencies determined that compliance could be achieved by expanding the STAs by 7,300 acres (6,500 acres would be added to STA-1W) and constructing flow equalization basins to store up to 110,000 acre feet of stormwater runoff. These basins are designed to attenuate peak flows into the STAs in order to improve the processes that remove phosphorus. In September 2012, DEP issued the District a new EFA permit, which authorized continued operation of the District’s S-5A pump station, STA-1W, and the related conveyance systems by which stormwater runoff from the S-5A Basin is ultimately discharged to the EvPA. The permit was issued with a Consent Order, requiring the District to expand STA-1W by 6,500 acres of effective treatment area in accordance with a timeline and the District’s Restoration Strategies. The 2012 EFA Permit and Consent Order were not challenged by Audubon or any other entity. In 2013, the Legislature amended the Act again. The Act’s reference to the Long-Term Plan was revised to include the District’s Restoration Strategies Regional Water Quality Plan, which called for expanding the STAs and constructing flow equalization basins. See § 373.4592(2)(j), Fla. Stat. The Legislature added a finding that “implementation of BMPs, funded by the owners and users of land in the EAA, effectively reduces nutrients in waters flowing into the Everglades Protection Area.” See § 373.4592(1)(g), Fla. Stat. The 2013 amendments indicated the Legislature’s intent to codify into law the strategies developed by the District and other regulatory agencies to achieve water quality standards in the EvPA. Those strategies do not materially change the BMP program in the EAA. The Act and the rules of the District create programs for achieving restoration of the EvPA that rely heavily on the STAs. Over the years, the STAs have repeatedly been enlarged and enhanced. In contrast, the requirement for farmers in the EAA to reduce their phosphorus loading by 25 percent has not changed in 21 years. It is beyond the scope of this proceeding to question the wisdom of the programs that have been established by statute and rule. Whether Additional Water Quality Measures Are Required A principal dispute in this case is whether the WOD Permits must include additional water quality measures to be implemented by the Applicants. Section 373.4592(4)(f)4. provides that, as of December 31, 2006, all EAA permits shall include “additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs.” Audubon asserts that the requirement for additional water quality measures has been triggered. The District does not interpret the statute as requiring additional water quality measures under current circumstances. The interpretation of the statute is primarily a disputed issue of law and is addressed in the Conclusions of Law. There, it is concluded that additional water quality measures are not required. Whether the BMP Plans are Adequate Audubon contends that the WOD Permits should be denied because the Applicant’s existing BMP plans are not “tailored” to particular soils, crops, and other conditions. This contention is based on section 373.4592(4)(f)2.c., which states in relevant part: BMPs as required for varying crops and soil types shall be included in permit conditions in the 5-year permits issued pursuant to this section. Audubon showed that the Applicants have similar BMP plans for the thousands of acres covered in the three WOD Permits, and contends that this similarity proves that BMPs are not being tailored to specific farm conditions. However, soils and crops are similar throughout the EAA. The soils of the EAA are almost entirely muck soils and the primary crop is sugarcane with some corn or other vegetable rotated in. The Applicants use many of the same BMPs because they have similar soils and grow similar crops. There are three main categories of BMPs implemented in the EAA: nutrient and sediment control BMPs, particulate matter and sediment control BMPs, and water management BMPs. See Fla. Admin. Code R. 40E-63.136, Appendix A2. The BMPs proposed by the Applicants are based on research in the EAA and recommendations specifically for EAA soils and the crops grown there. The Applications do not identify the specific BMPs that will be implemented, but only the number of BMPs that will be selected from each of the BMP categories (i.e., sediment control). The Applicants must use BMPs on the District’s list of approved BMPs unless an alternative BMP is requested and approved. The lack of greater detail was explained as necessitated by the need for flexibility during the life of the permit to adapt BMPs to varied crops and conditions. Audubon does not believe the BMP plans are tailored enough, but there is no rule criterion for determining how tailored BMP plans must be, except they must achieve the overall goal of reducing phosphorus loading in discharges from the EAA by at least 25 percent. This goal is being achieved.2/ Audubon did not show that any particular BMP being used by an Applicant was the wrong BMP for a particular soil and crop, or identify the BMP that Audubon believes should be used. Audubon failed to prove that the Applicants’ BMP plans do not meet applicable requirements. Whether the Applications Are Complete Audubon contends that the WOD Permits must be denied because the Applications are incomplete. Many of Audubon’s completeness issues deal with minor discrepancies of a type that are more appropriately resolved between the District and applicants, not violations of criteria that are likely to affect a third party’s interest in environmental protection. Rule 40E-63.130 lists the requirements for a permit application for activities in the EAA Basin. An Application Guidebook is incorporated into chapter 40E-63, which contains instructions for completing the application. For applications to renew a permit, the practice of the District is to not require the resubmittal of information that was previously submitted to the District and which has not changed. The Application Guidebook explains this practice. The Applicants supplemented their applications at the final hearing to provide information that Audubon claimed was omitted from the Applications.3/ Audubon contends that the Applications are incomplete because some application forms are not dated and other forms are not signed by appropriate entities. The District explained its rule interpretation and practices associated with the forms. Additional signatures and dates were submitted at the final hearing. Audubon failed to demonstrate that the Applications are incomplete based on the identity of the persons who signed application forms or the lack of dates. Audubon contends the Applications are incomplete because copies of contracts or agreements are not included as required by rule 40E-63.132(3). Audubon failed to prove that contracts and agreements exist that were not included. Audubon contends the Applications are incomplete because they do not contain a completed Form 0779, entitled “Application For A Works Of The District Permit,” as required by rule 40E-63.132(5). In some cases, the information for Form 0779 had been previously submitted and was unchanged, so the District did not require it to be resubmitted for the permit renewal. Additional information was provided at the final hearing. Audubon failed to prove that the Applications are incomplete based on missing information on Form 0779. Audubon contends that the Applications are incomplete because documentation regarding leased parcels was missing. Pursuant to rule 40E-63.130(1)(a), individual permit applications must be submitted by the owner of the land on which a structure is located and any entity responsible for operating the structure, and the permit application must include the owners of all parcels which discharge water tributary to the structure. Applications may be submitted by a lessee if the lessee has the legal and financial capability of implementing the BMP Plan and other permit conditions. The District explained that when applications are submitted by a lessee who will be the permittee or co-permittee, the District requires the lessee to be a responsible party for the entire term of the permit, which is five years. If the lessee is a not a co-permittee, the District does not require information about the lease and does not require the lessee’s signature. If the lessee is a co-permittee, but the lease expires during the term of the permit, the District requires the applicant to modify the permit when the lease expires. Audubon failed to prove that the Applications are incomplete based on lease information Audubon contends that the Applications are incomplete because they fail to show that the Applicants participated in an education and training program as required by rule 40E- 63.136(1)(g). The preponderance of the evidence shows that the Applicants participated in education and training programs. Audubon failed to prove that the Applications are incomplete for any of the reasons raised in its petition for hearing or advanced at the final hearing. Water Quality Standards in the EAA Audubon presented some evidence of algal accumulations in ditches and canals, but the evidence was insufficient to prove the Applicants are violating water quality standards applicable in the EAA. Summary Audubon failed to carry its burden to prove that the Applicants are not entitled to the WOD Permits.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that South Florida Water Management District issue Permit Nos. 50-00031-E, 50-00018-E, and 50-00047-E. DONE AND ENTERED this 10th day of February, 2014, 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 10th day of February, 2014.
Findings Of Fact The Parties and the Property. The Respondent, HORNE, owns or has options to purchase approximately 24.35 acres of real property at the southwest corner of U.S. Highway 41 and State Road 50 Bypass in Brooksville, Florida. The Petitioner, the ASSOCIATES, owns approximately 67.5 acres of real property to the south and downstream from the HORNE property. The ASSOCIATES' property is presently undeveloped. The HORNE property contains an existing Publix shopping plaza, a mobile home sales office and vacant lands. The Publix plaza was previously permitted by the DISTRICT before it was constructed. The Surface Water Permit Application On August 7, 1992, HORNE submitted its application for surface water permit No. 400317.02. The application sought approval to construct a surface water management system for a proposed new K-Mart store on HORNE's property. On November 3, 1992, the DISTRICT issued notice of final agency action approving issuance of permit No. 400317.02 to HORNE. The day before the original final hearing in this matter scheduled for March 1993, new information from a study called the Peck Sink Watershed Study came to light which rendered the project as then designed unpermittable. This information resulted in the surface water management system being redesigned. On April 1, 1993, the DISTRICT notified all of the parties that the redesigned surface water management met District rule criteria. This resulted in issuance of what became known as the April 1 submittal. On May 12, 1993, in response to concerns raised by the ASSOCIATES at depositions on May 10, 1993, HORNE produced the May 12 submittal and provided it to all parties on that same date. The changes in design reflected on the May 12 submittal related to lowering the pond bottoms one foot below the orifices and changing the contour lines on the outside of Pond 5A. On May 13, 1993, further minor changes were made to the permit materials. Specifically, the changes were: reflecting on the engineering worksheets the lowering of the pond bottoms accomplished on the May 12 submittal, correction of the contour line on the outside of Pond 5A and showing the amount of additional fill into the 100-year floodplain caused by the addition of the contour line to the outside of Pond 5A. In reviewing HORNE's application, the District applied the standards and criteria set forth in Chapter 40D-4, Florida Administrative Code, and the Basis of Review for Surface Water Management Permit Applications. Compliance with DISTRICT Permitting Criteria Water Quantity The main two areas considered by the DISTRICT in assessing water quantity in a closed basin are: attenuating the peak rate of discharge for the 25 runoff for the 100 The peak rate of runoff for this project for the 25 (2) cubic feet per second (cfs) less in the post-developed condition than in the pre-developed condition, as shown on the April 1 submittal. No changes were made between the April 1 and May 12 or 13 submittals relating to the peak rate of discharge. The difference in the volume of runoff between the pre-developed and post-developed condition during the 100-year storm is being retained on site, as shown on the April 1 submittal. Therefore, DISTRICT rule criteria for the peak rate and volume of runoff were met on the April 1 submittal. Lowering the bottoms of the detention ponds on the May 12 and 13 submittals resulted in additional post 100 system, as redesigned to retain this additional 100-year volume, exceeds the DISTRICT's 100 Floodplain Encroachment Under the DISTRICT's floodplain encroachment standards, any fill within the 100 out an equivalent volume of fill elsewhere on the property. HORNE's application satisfies the DISTRICT's floodplain standards. HORNE is filling 1.59 acre feet of the floodplain and creating 1.75 acre feet of compensation. The floodplain compensation will be above the seasonal high water table, as required by Section 3.2.1.4 of the DISTRICT's Basis of Review. The original, existing seasonal high water table will be lowered as a result of the excavation so that the entire floodplain compensation area will be above the seasonal high water table. Water Quality A wet detention system as proposed by HORNE is an acceptable means under the DISTRICT's rules of treating runoff for water quality purposes. The bottoms of the ponds, as shown on the May 12 submittal, are all at least one foot below the orifice elevations, as required by the Basis of Review. Thus, the project met all relevant DISTRICT water quality requirements as of the May 12 submittal. Operation and Maintenance DISTRICT rules require that reasonable assurances be provided that the surface water management system can be effectively operated and maintained. HORNE will be the operation and maintenance entity for this surface water management system. The DISTRICT's main concerns at the time of permit review are that the design of the surface water management system not be an exotic design, that the design insure that littoral zones can be established, that the system orifice can be cleaned, that the overall system will be stable and that there is a viable operation and maintenance entity. HORNE's project can be effectively operated and maintained. Remaining District Rule Criteria As stipulated to by the parties that the project will not cause adverse impacts to wetlands and will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it in Chapter 40D Additionally, the proof establishes that the project will not cause adverse impacts on surface and groundwater levels and flows will not adversely affect the public health and safety; is consistent with the requirements of other public agencies; will not otherwise be harmful to the water resources within the District; will not interfere with the legal rights of others as defined in Rule 17 Objections Raised by the ASSOCIATES at the Hearing Pond Slopes and Operation and Maintenance Contrary to the assertion that the pond slopes will not be stable and cannot be effectively operated and maintained, the pond side slopes at this project are going to be constructed out of a heavy clay type of soil. Sodded side slopes of 1:1, as proposed for three of the ponds, can be stabilized and effectively operated and maintained. Although there is no DISTRICT requirement that sodded side slopes be mowed, so on these slopes could, if necessary, be cut. In the event the side slopes were to erode, easy repair is possible. All of the ponds except one side of one pond have areas at least 20 feet wide and slopes no steeper than 4:1 where maintenance can be performed. With regard to the pond that does not have this characteristic, equipment can enter and perform necessary maintenance. Water Quality Treatment Concerns that at least a portion of the bottoms of the ponds need to be below the seasonal high water table and that circulation of the ponds needs to be maximized in order to meet water quality treatment criteria are misplaced since there is no requirement that the pond bottoms be below the seasonal high water table in wet detention systems such as the one at issue in this case. Further, the entire bottoms of the ponds are littoral zone and meet DISTRICT rule requirements that 35 per cent of the pond be littoral zone, concentrated at the outfall. Additionally, the ponds at issue maximize circulation through the location of points of inflow and outflow. Floodplain Mitigation Concerns that volume in the floodplain mitigation area is not available because of problems with the seasonal high water table are also misplaced. Specifically, the floodplain area encroachment requiring mitigation relates to Pond 5A. There is more than enough volume within the area which will be excavated to compensate for the area where the fill will be deposited. The seasonal high water table will be at or below the floodplain mitigation area after the required excavation takes place. Although the seasonal high water table will be lowered where the excavation or cut is made and later raised where the fill is placed, no adverse effects on the water table will result from such lowering and raising of the water table. Volume In Pond 5A Allegations that the May 12 and 13 submittals reflect that Pond 5A has less volume available than the modeling calculations contemplate are incorrect. The changes in the contour lines of Pond 5A on the May 12 and 13 submittals from what was shown on the April 1 submittal occurred on the outside of the pond. The volume on the inside of the pond was not reduced actually increased when the pond bottom was lowered for water quality purposes. In determining how much volume a pond is to have when it is constructed, the computer modeling figures take precedence over the scaled plan drawings. In this case, the computer modeling figures never changed after the April 1 submittal. HORNE submitted a computer model that calculated the volume of Pond 5A. The output data clearly reflects that the top of the bank was 82 feet. Publix's Status as an Existing Site Assertions that the Publix site should have been considered in its pre-developed state since there will be approximately one acre foot of volume of runoff, or possibly less, leaving the site without retention are without validity. The Publix plaza was permitted by the DISTRICT in 1985 and constructed in 1986. The amount of peak flow discharge and overall discharge is currently authorized by a valid MSSW permit. When the DISTRICT reviews a permit application, all existing permitted surface water management systems must be accepted in their present state. There is no authority in the DISTRICT's rules to consider an existing permitted site in its pre Even if the Publix site is considered in its pre project has only .02 of an acre foot more volume of runoff in its post-developed condition than in the pre Storage of 100-Year Volume Allegations that the amount of 100-year volume being retained on site in the ponds has been incorrectly calculated by the DISTRICT and HORNE are also invalid. The DISTRICT's rules require that the difference between the pre- and post-development volume for the 100-year storm be retained on site. In the ponds which are the subject of this proceeding, the 100-year volume is retained in the ponds below the orifice. This volume cannot leave the site through the orifice; it can only leave the site by percolation into the ground or evaporation into the air.
Recommendation Based on the foregoing, it is recommended that the Southwest Florida Water Management District enter a final order granting HORNE's Application for Surface Water Management Permit No. 400317.02. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. DON W. DAVIS 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 25th day of June, 1993. APPENDIX The following constitutes my rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties Proposed findings submitted by Petitioners (Petitioner's proposed findings begin at paragraph number 13.) 13.-19. Accepted. 20.-30. Rejected, unnecessary. 31.-44. Rejected, subordinate to hearing officer findings. 45.-47. Accepted. 48.-77. Rejected, subordinate to hearing officer findings. 78.-79. Rejected, recitation of documents. 80.-84. Rejected, weight of the evidence. 85.-88. Rejected, unnecessary. 89.-93. Rejected, weight of the evidence. 94.-95. Rejected, unnecessary. 96. Accepted. 97.-98. Rejected, subordinate, weight of the evidence. 99.-100. Rejected, unnecessary. 101.-126. Rejected, subordinate. 127. Accepted. 128.-129. Rejected, unnecessary. 130.-135. Rejected, argument. 136.-144. Rejected, weight of the evidence. Respondents Joint Proposed Findings. 1.-56. Accepted, though not verbatim. 58.-59. Rejected, unnecessary. COPIES FURNISHED: David Smolker, Esquire Honigman, Miller, Schwartz & Cohn 2700 Landmark Centre 401 East Jackson Street Tampa, Florida 33602 Rodney S. Fields, Jr., Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Richard Tschantz, Esquire Mark F. Lapp, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
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 determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of April, 2011.
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was 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. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
The Issue Whether the application of Telegraph Cypress Water Management District to modify an existing surface water management system permit should be granted.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida existing pursuant to Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is a multipurpose water management agency with principal offices in West Palm Beach, Florida. Telegraph Cypress Water Management District (TCWMD) is a water control district organized pursuant to Chapter 298, Florida Statutes. Agricultural operations have been conducted within the TCWMD for more than 30 years by the landowner, Babcock Florida Company. The TCWMD is the permittee of record. James D. English, Jr., owns, along with other members of his family, an orange grove and pasture in Lee County, Florida. The English family has owned the property for approximately 120 years. On November 10, 1992, James D. English, Jr., and the Panacea Timber Company filed a petition for formal administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. Cypress Creek Partnership is a Florida General Partnership of which James D. English, Jr., is a principal. The partnership engages in agricultural activities in Lee County, Florida. The Alva Cemetery, Inc., is a Florida not-for-profit corporation which owns and manages a cemetery facility in Lee County Florida. The cemetery has been in active use for approximately 120 years. In recent years, Alva Cemetery has experienced occasions of excess water encroaching onto the cemetery property. On November 12, 1992, Alva Cemetery, Inc., filed a petition for administrative hearing challenging the District's intent to issue SWM Permit Modification No. 08-00004-S. James D. English, Jr., Cypress Creek Partnership and Alva Cemetery, Inc., are herein referred to as Petitioners. The TCWMD and the Petitioner English share a common property boundary. The Alva Cemetery is surrounded by the English property. All lands involved in this matter historically drain towards the Caloosahatchee River. The TCWMD includes approximately 89,120 acres of land located in Charlotte and Lee Counties, Florida. The land uses within the TCWMD include agricultural, cattle, and timber operations. Generally, the fields have been leased to third party farmers who use the field for several years. When the fields are not actively farmed, they are returned to a fallow state and used as pasture land until fertility is restored at which time they are reactivated for farming. Active farms fields are generally surrounded by a perimeter ditch and dike system. Pumps may be used to water and de-water the fields. When the field is returned to a fallow state, the ditch and dike system are not maintained and become less prominent either by action of weather or by intent. Pumps are not present. All of the TCWMD lies generally north to northwest of the property owned by the Petitioners. Surface waters flow onto the Petitioners' lands from the north. The Telegraph-Cypress system is unique and is the largest of its kind in South Florida Water Management District jurisdiction. The TCWMD system includes storage/detention facilities, control structures, pumping stations and an extensive network of internal canals. There are nine separate water management basins within the TCWMD. The Petitioners asserted that the water management basins identified by the District and the TCWMD are incorrect. The greater weight of the evidence establishes that the District's identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The land encompassed by the instant application for permit modification includes three of the nine basins and encompasses approximately 51,400 acres of the TCWMD. Surface water discharge from the relevant farm fields flows via the internal canal network and sheet flow to the three common detention basins: Telegraph Swamp, North Telegraph Swamp ("Telegraph North") and Curry Lake. The Telegraph North basin lies to the north of and discharges into the Telegraph Swamp basin and includes 13,799 acres of which 4,094 acres are farm fields. The drainage into the Curry Lake basin does not impact either the Telegraph North or Telegraph Swamp basins or the Petitioners' properties. The evidence establishes that as to the Telegraph North and Curry Lake drainage basins, the permit modification meets applicable permitting criteria. There is no credible evidence to the contrary. Telegraph Swamp is the largest of the three relevant detention systems. The Telegraph Swamp basin includes a total of 32,707 acres of which 4,381 acres are farm fields. Telegraph Swamp is a 4,390-acre wetland vegetated by cypress trees and sawgrass, with a base of muck soils, humus, topsoil, leaf litter and other organic material. Located at the south end of Telegraph Swamp are surface water management control structures (the Big Island Dike) built in 1975 and permitted in the original 1980 permit. The structures include three broad-crested weirs and one flash-board weir. Telegraph Swamp has been compared to a "sponge" capable of absorbing vast quantities of surface water discharges within the TCWMD before the control structures at the south end of the swamp are over-topped. Water discharged from the control structures flows through canals and creeks to the Caloosahatchee River. During storm events water is discharged over the control structures and into a swamp area south of Big Island Dike. From there, the water flows southerly, into Telegraph Creek, Big Island Canal and Cypress Creek and then into the Caloosahatchee. The Petitioners expressed concern that TCWMD could inappropriately discharge water from the control gates in the Telegraph Swamp weir. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Discharge structures in the Telegraph Swamp basin shall remain fixed so that discharge cannot be made below the control elevations, except that structure gates and weirs may only be removed during emergency conditions upon notification to and consent by the District's Fort Myers Service Center regulatory area manager or designee. The Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989, incorporated into Chapter 40E, Florida Administrative Code, provides the applicable water quantity permitting criteria relevant to this proceeding. The Petitioners assert that the control gates are required to be locked in accordance with Basis of Review section 3.2.4.1.b, which states: Discharge structures shall be fixed so that discharge cannot be made below the control elevation, except that emergency devices may be installed with secure locking devices. Either the District or an acceptable govern- mental agency will keep the keys for any such devices. The Petitioners are correct. The rule requires secure locking devices. Such condition should be added to the permit The keys may remain with the TCWMD as "an acceptable governmental agency." In 1980, the District issued Surface Water Management Permit No. 08- 00004-S for the TCWMD to operate an existing surface water management system for an existing agricultural operation. The 1980 permit specifically authorizes "[o]peration of a water management system serving 89,120 acres of agricultural lands by a vast network of internal drainage and irrigation canals, a major dike, a major canal and 4 water control structures discharging via small tributary creeks and sloughs into the Caloosahatchee River." Although the permit has been subsequently modified, the authorization to operate the system has not been amended. While District enforcement staff have occasionally noted "performance deficiencies" on the TCWMD property, there have been no permit violations by the permittee. Deficiencies which have been called to the TCWMD's attention have been resolved. Special condition number five to the 1980 permit provides that "[d]ischarges of water onto adjacent lands may be continued to the extent that increased problems are not caused by such discharges." The Petitioners assert that the District has failed to acknowledge that water discharged from the Telegraph Cypress system flows into the Cypress Creek canal and has failed to consider the impact on the Cypress Creek receiving body. However in the staff report to the 1980 permit states as follows: The Telegraph Cypress basin has three major drainage outlets. These are Trout Creek on the west, Telegraph Creek in the center and Cypress Creek to the east. There is a fourth outlet in the northeastern corner of the property known as Jack's Branch, however, this outlet is small compared to the three major ones. Much of Telegraph's southeastern area was previously drained by Spanish Creek and County Line Canal. This historical drainage pattern was blocked when a company which is presently known as Golden Grove constructed a dike across their northern boundary. This dike causes increased flow in a westerly direction around the west end of the dike, thence southerly towards Cypress Creek. This increased flow has caused excess water problems to property owners downstream. In addition, the dike has blocked virtually all flow to Spanish Creek. The evidence fails to establish that, as asserted by the Petitioners, the District has failed to acknowledge the discharge of water to Cypress Creek or to consider the condition of the Cypress Creek receiving body. In the instant case, the condition of the Cypress Creek receiving body was not re- addressed because the permit modification being sought will cause no additional adverse impacts on existing conditions. Although not individually numbered and identified in the original 1980 permit, the evidence establishes that in 1980, all of the farm fields which are subject to this permit modification application were in existence. The applicant seeks no new water control structures. Other than that required to reactivate fallow farm fields, there is no new construction proposed in the instant application. The Petitioners assert that the instant permit modification application will result in construction of new farm fields. The evidence is contrary to the assertion. Proposed permit special condition No. 10 states that the permit does not include the construction of any new farm fields. The farm fields covered in the staff report would be permitted for reactivation from a fallow state without further permitting activity in the future, and without individual retention for each farm field. The modifications to the original 1980 permit have increased the total farm land area. There is no evidence that, except as specifically permitted and approved by the District, there has been alteration of historical discharge rates or routes. There has been considerable confusion regarding the permitting status of the operations as farm fields have been reactivated. Such reactivation entails grading and leveling fields, reconstruction of ditches and dikes and installation of pumping equipment. In order to provide for standardization in farm field reactivation, and to better monitor such activities, the District requested that the TCWMD seek to modify the existing permit. On February 8, 1991, the TCWMD submitted an application to modify the existing permit for the purpose of reactivating the existing farm fields located within the Telegraph North, Telegraph Swamp, and Curry Lake drainage basins. The proposed SWM permit modification authorizes the continued use of the previously permitted surface water management system for existing active and fallow farm fields and allows the reactivation of currently fallow farm fields without further permit modification by the District. Proposed SWM permit special condition No. 16 states that the District requires notification in letter form 30 days prior to all farm field reactivation activities. The proposed modification of the permit will provide the District with an enhanced ability to inspect the reactivated farm fields. Inherent in such reactivation is ditching and diking of the fields. Such operations have been authorized since the 1980 permit was issued. The work associated with field reactivation will be conducted in accordance with existing design criteria as set forth in the application. Based on evidence admitted at the hearing, the permit modification should include the following special condition: Ditches and dikes associated with the farm fields encompassed by this authorization shall be constructed/maintained in conformance with the "Typical Field Layout And Detail Sheet," revised 10/12/93. The evidence establishes that the operations of the TCWMD as proposed by the permit modification application are within the authorization of the existing permit as previously modified. Otherwise stated, the award of this modification will have no substantial impact on the operation of the permitted surface water management system. The modification will result in no additional discharge of surface water from the control structures. The District has established water quantity criteria intended to insure that adverse impacts do not occur due to excess discharge. (Based upon the Hearing Officer's ruling on a District's Motion in Limine, water quality issues were not addressed at hearing.) The criteria are set forth at Chapter 40E-4.301, Florida Administrative Code, and in the Basis of Review. In relevant part, the District criteria require an applicant to provide reasonable assurances that the surface water management system provides adequate flood drainage and protection, that the system will not cause adverse water quantity impacts on receiving waters and adjacent lands, and that the system will not cause adverse impacts on surface and groundwater levels and flows. Modification of a permit must not result in additional adverse off-site impacts. In this case, reasonable assurances have been provided that the proposed modification will not exacerbate the historical and current drainage conditions. The permit modification application at issue does not propose to alter the rates or routes of water currently authorized for discharge from Telegraph Swamp. Reactivation of the farm fields will not impact receiving bodies in any manner different from that which presently exists under previous permits. In providing reasonable assurances, the TCWMD analyzed the water storage capacity available in the detention basins, performed flood routing projections and calculated peak discharge rates for the permit area. As required by the district, the TCWMD utilized a standard hypothetical 25-year/3- day storm event in order to determine whether sufficient capacity was available to handle the resulting stormwater. The projections provide reasonable assurances that the common detention areas have the capacity to provide adequate flood drainage and protection and are accepted. Rule 40E-4.091(1)(a), Florida Administrative Code, incorporates by reference a document identified as the "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District--September 1989" Section 3.2.1.2.b requires that: the proposed project modification must meet the allowable discharge rate; and the allowable discharge rate for a previously permitted project is that which was set in the previous permit. The TCWMD prepared and submitted discharge calculations establishing that the post-development discharges will not exceed the discharge rate previously accepted by the District. Since 1984, the District has previously accepted a peak allowable discharge rate of 39 cubic feet per second per square mile (csm). The csm figure is based upon the historical TCWMD discharge rate within the Caloosahatchee River basin. As previously stated, reactivation of the farm fields will not impact the receiving bodies in any manner different from that which presently exists under previous permits. The District asserts that the 39csm discharge rate has been "permitted" since the 1984 modification was approved. The Petitioner asserts that the 39csm discharge rate has never been "permitted" by the District. The evidence establishes that since the 1984 application for permit modification, the discharge rate of 39csm has been utilized by TCWMD and has been accepted by the District, but that the actual permits do not specifically identify the discharge rate as 39csm. In projecting discharge rates, the TCWMD used a time of concentration of one hour. The time of concentration (T.O.C.) is the time in which water would move from the farm fields to the control structure in each sub-watershed. Otherwise stated, a projected T.O.C. of one hour means that the storm water would move from the field to the control structure in one hour. The T.O.C. of one hour is a conservative estimate and likely substantially overestimates the speed at which the water will move. The three basin areas contain a total of more than 80 square miles. Water will travel an average distance of two miles from field to detention basin through ditches, swales and existing low areas. Again conservatively, the TCWMD did not include projected travel time through such conveyances, resulting in a longer T.O.C. and resulting in a higher peak discharge rate than is probable. Although there appeared to be some confusion on the part of the District staff as to the application of the T.O.C. by the TCWMD, the TCWMD engineer who performed the calculation testified at hearing and was qualified as an expert witness in civil engineering, hydrology and surface water management. His testimony and projections are reasonable and are credited. Proposed SWM permit modification special condition No. 11 states that farm field discharge shall be directed to and conveyed via existing ditches, wetlands and/or sheetflow areas per existing site conditions. No new outfall ditches are permitted under this modification. Flood routings were calculated assuming all farm fields would be activated simultaneously and pumping the maximum capacity of 390 gallons per minute per acre (the equivalent of 20-21 inches of surface water pumped from each field daily). It is highly unlikely that all farm fields would be active simultaneously or that stormwater would continue to fall with such velocity to permit continued pumping at maximum capacity for an extended period. Even based on the conservative assumptions utilized by the TCWMD engineers, the projected peak discharge rate at the Telegraph Swamp control structure is 37csm to 38.5csm, within the maximum of 39csm previously accepted by the District. The computer modeling performed by the TCWMD engineer in calculating the peak discharge rate is accepted as reasonable. The TCWMD did not include offsite inflow in its analysis of projected capacity or discharge rates. There is anecdotal evidence that on occasion, water may flow into TCWMD from Jack's Branch or from across roadways to the north and west of the TCWMD; however, given the vast storage capacity of the TCWMD detention areas, there is no evidence that the quantity of offsite inflows is of such significance as to render the TCWMD projections unreasonable. As previously stated, the TCWMD calculations are reasonable and are accepted. The evidence establishes that the peak discharge rate resulting from approval of the instant permit modification will not exceed 39csm. The Petitioners offered their own peak discharge rate calculations, based on a "worst possible case scenario." The assumptions on which the Petitioners' projections are based are unreasonable and are rejected. Based on recommendations received at the hearing, the permit modification should include the following special condition: Pumped discharge from farm fields for which pumps are not currently installed shall be limited to 75 gallons per minute per acre of farmed area. Pumps are currently installed in fields number 7, 8, 9, 10, 12, 14, 15, 24 north and south, 28, east half of 34, 64, 67, 68, 69 and 80. The Petitioners assert that the system is currently causing adverse impacts to their properties in the form of flooding. The greater weight of the evidence establishes that the system presently does not cause adverse water quantity impacts on receiving waters and adjacent lands, and does not cause adverse impacts on surface and groundwater levels and flows. The evidence establishes that award of the application for permit modification will not adversely alter the current operations. It is clear that the Petitioners have been impacted by changes in the historical drainage patterns in the area; however, such changes had substantially occurred by 1980 when the original permit was issued. The greater weight of the credited evidence establishes that such impacts are not the result of the activities authorized in the original 1980 permit and in subsequent modifications, but instead are the result of unrelated actions by third parties not involved in this administrative proceeding. There is no credible evidence that the permit modification sought in the instant proceeding will adversely affect the Petitioners. The 1980 permit addresses existing water quantity problems in the area of the TCWMD project. For example, the construction of the Golden Grove Dike resulted in blockage of historical drainage towards Spanish Creek and the diversion of excess waters into Cypress Creek. During the 1980's the District required that culverts be installed in the Golden Grove Dike which eventually restored some surface water flow through the dike construction and on towards the south, although during some storm events water flow continues around the dike and into Cypress Creek. The Petitioners offered anecdotal evidence as to reduced water flows in some local creeks and increased flows thorough Cypress Creek. The Respondent offered evidence indicating that water flow through Cypress Creek may be less than 30 years ago, due to the digging of a canal between Spanish Creek and Cow Slough and the extension of the Clay Gully Canal's diversion of water into Telegraph Swamp. None of the evidence on this point was persuasive, however it is not relevant. Clearly, the instant permit modification application will not adversely affect the existing situation in the receiving bodies. The Petitioners assert that other receiving waterways have become clogged with vegetation, debris or soil, have accordingly reduced capacities, and are unable to accommodate historical discharge levels. Based on the lack of capacity, the Petitioners suggest that waters move towards the eastern portion of Telegraph Swamp and are discharged, flow towards, into and over the banks of Cypress Creek, and flood their properties. The TCWMD conducted a study of backwater profiles based upon credited field data. The study is found to be reasonable and is credited. Based upon the study, approximately 90 per cent of the water discharged from Telegraph Swamp is conveyed to the Caloosahatchee via Big Island Canal, Telegraph Creek and the swamp area south of the control structure. The remaining 10 per cent of the water enters the Bullhead Strand-Lightered Canal-Cypress Creek watercourse. Water flows from Telegraph Swamp into Cypress Creek via Bullhead Strand and the South Lightered Canal, however, the canal has become so restricted by vegetation that it provides little direct water flow between the strand and the creek and is more properly regarded as an area of enhanced sheet flow. The evidence does not establish that the surface water traveling from Bullhead Strand to Cypress Creek is of significance. Coupled with the existence of the Big Island Canal (which connects Telegraph Swamp to Telegraph Creek) it is unlikely that post-development surface water discharged from the Telegraph Swamp into Cypress Creek exceeds pre-development discharges. The Petitioners claim that two culverts in the Big Island canal restrict the flow of water through the canal and result in increased discharge to the east and to Cypress Creek. The greater weight of the evidence establishes that during period of time when the culverts are unable to accommodate water flow, the water travels into a broad flood plain, around the culverts and returns to the Big Island Canal. The evidence establishes that the proposed modification will not result in additional adverse off-site impacts. The adverse conditions affecting Cypress Creek existed at the time of the 1980 permit and are addressed in the staff report to that permit and to subsequent permit modifications. There is no credible evidence that modification of the permit as sought in this case will result in adverse impacts beyond those which have existed at the time of the award of the original permit. The Petitioners assert that the fields included within the permit modification application lack individual retention areas. The lack of individual detention areas is immaterial in this case where sufficient downstream detention capacity is available through the common detention areas. The Petitioners asserts that the Telegraph Swamp is an "above-ground impoundment" and that as such is fails to comply with requirements related to such water storage systems. The Telegraph Swamp is not a typical "above-ground impoundment" as that term is routinely applied by the District. The regulations addressed by the Petitioners clearly state that they are not intended to be inclusive and are intended to provide guidelines and basic performance criteria for commonly encountered south Florida situations. Telegraph Swamp is not a commonly encountered south Florida situation. There is no evidence that the decision not to apply the "above-ground impoundment" regulations to the Telegraph Swamp is unreasonable. The Petitioner suggest that the TCWMD application for permit modification is deficient and fails to provide information in compliance with the Basis of Review. The Basis of Review is directed towards applications for new construction. The District reasonably does not interpret the all elements of the Basis of Review to apply to existing operations. The original staff report for this permit modification application fails to acknowledge that Cypress Creek is a receiving body. However, as stated previously, the 1980 application and subsequent modifications have clearly addressed the fact that Telegraph Swamp waters discharge to Cypress Creek via intervening waterways. The failure to include the reference in the staff report to this application for modification is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order issuing Surface Water Management Permit Modification No. 08-00004-S including the additional permit conditions set forth herein, to the Telegraph Cypress Water Management District. DONE and RECOMMENDED this 1st day of April, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASES NO. 92-6900 and 92-6901 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners James D. English and Cypress Creek Partnership The proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership consist of unnumbered paragraphs. Pages forty-five through fifty-nine of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership were stricken as set forth in the Order On Motion To Strike issued March 29, 1994. The paragraphs of pages five through forty-four of the proposed findings of fact submitted by Petitioners James D. English and Cypress Creek Partnership have been consecutively numbered and are accepted as modified and incorporated in the Recommended Order except as follows: 1-2. Rejected, argument, not findings of fact. 7-9. Rejected, argument, not findings of fact. The staff report is not dispositive. 10-12. Rejected. The greater weight of the evidence establishes that, although the 39csm figure is not set forth in the permit, as of the 1984 modification, the TCWMD calculations have been based on a peak discharge rate of 39csm and that the District has accepted the calculations previously. The applicable criteria in the instant case require that the allowable discharge rate for a previously permitted project is that which was set in the previous permit. 13. Rejected, recitation of testimony is not finding of fact. 15-16. Rejected, argument, not finding of fact, irrelevant, cumulative. 17-18. Rejected, recitation of testimony is not finding of fact. 19. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that 39csm has been the peak discharge rate accepted by the District since 1984. The flow rate projected by the TCWMD does not exceed the accepted peak discharge rate. 24. Rejected, recitation of testimony is not finding of fact. 26-28. Rejected, recitation of testimony is not finding of fact. 29-30. Rejected, argument, not finding of fact. Rejected, irrelevant. Rejected, argument, not finding of fact. Rejected, irrelevant. The greater weight of the credible and persuasive evidence establishes that 39csm has been the District's accepted peak discharge rate and that this modification will not result in peak discharge rates in excess of that which has been previously accepted. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, unnecessary. 36-45. Rejected, irrelevant. The anecdotal evidence fails to establish that offsite inflows are of such quantity as to render the TCWMD projections unreasonable. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 46-52. Rejected, contrary to the greater weight of credible and persuasive evidence. The evidence fails to establishes that the swamp is an "above-ground impoundment" as that term is routinely applied by the District. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 53-67. Rejected, irrelevant. An applicant for a permit modification is not required to supply every item on the checklist. An application for a modification to an existing permit often need not contain all the items described. 69. Rejected, cumulative. 70-71. Rejected, argument, not finding of fact. 72-81. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the identification and delineation of the nine basins is based on historical hydrologic characteristics of the TCWMD and is a reasonable determination of basin boundaries. The proposed findings also consist of recitation of testimony or argument and are not findings of fact. 82. Rejected, subordinate. 83-85. Rejected, irrelevant. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. This proceeding is not a review of preliminary staff activity. The applicant must establish entitlement to the permit at the hearing. 86-87. Rejected, recitation of testimony is not finding of fact. Rejected. The confusion on the part of District staff as to what T.O.C. was utilized by the TCWMD engineer is irrelevant. Rejected, unnecessary. Rejected, recitation of testimony is not finding of fact. 91-94. Rejected, irrelevant, the discharge projections calculated by the TCWMD as explicated at the hearing are credited. In any event, the evidence establishes that this modification will result in no additional discharge of surface water from the control structures. 95-97. Rejected, irrelevant. The evidence establishes that this modification will result in no additional discharge of surface water from the control structures. Petitioner Alva Cemetery Petitioner Alva Cemetery's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, not supported by the greater weight of credible and persuasive evidence. 4-5. Rejected, irrelevant. Rejected, irrelevant. This is a de novo hearing, not a review of preliminary staff work. The evidence at hearing establishes that the permit modification will not cause additional adverse affect on existing receiving bodies. Rejected, irrelevant. The evidence fails to establish that Hall Creek and Fichter Creek are receiving bodies of such capacity that their omission from staff report is material. Rejected, irrelevant. Rejected, irrelevant. The evidence fails to establish that offsite inflows are of such quantity as to be relevant. 11. Rejected, not supported by the greater weight of credible and persuasive evidence. The Applicant's analysis is credited. As to T.O.C., even the less conservative T.O.C. projections indicate a peak discharge rate within that previously accepted by the District. 12-13. Rejected, irrelevant. Rejected, irrelevant. Such return overflows are unnecessary in this situation where the detention areas have the capacity to provide adequate flood drainage and protection. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, not supported by the greater weight of credible and persuasive evidence. 18-20. Rejected, cumulative. 21. Rejected, immaterial. There is no evidence that this permit modification application will cause additional adverse impact on receiving bodies. The failure to address nonexistent impacts is immaterial. Rejected, errors in staff report are irrelevant. The evidence admitted at hearing is accepted as correct. First paragraph is rejected, cumulative. Second paragraph is rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, anecdotal testimony is not supported by the greater weight of credible and persuasive evidence. Rejected. The greater weight of credible and persuasive evidence establishes that all farm fields affected by this permit modification application were in existence by the 1980 permit. Rejected, not supported by the greater weight of credible and persuasive evidence. The assumptions underlying the Petitioners' calculation of theoretical maximum discharge are rejected as unreasonable. Rejected, irrelevant. The greater weight of credible and persuasive evidence fails to establish that the cemetery flooding is related to actions by the TCWMD. Further, the evidence fails to establish that, even if the flooding was related to the TCWMD, the instant permit modification application will cause additional adverse impacts. Respondent Telegraph Cypress Water Management District Respondent Telegraph Cypress Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected, subordinate. 19-20. Rejected, not credited and unnecessary. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Rejected, cumulative. Rejected, unnecessary. Respondent South Florida Water Management District Respondent South Florida Water Management District's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 30. Rejected as to assertion that the 39csm discharge rate was set in the 1984 permit modification, not supported by the evidence. Review of the document admitted into evidence as the 1984 modification fails to reveal that the figure of 39csm is set forth therein. Pages 17-19 of the Proposed Recommended Order set forth revisions to the staff report which originally form the basis for the preliminary agency action in this matter. As the hearing is a de novo review of this matter, it is unnecessary for this Recommended Order to address the revision of the staff report, which has limited probative value. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Melville G. Brinson, Esquire 1415 Hendry Street Fort Myers, Florida 33902 Frank A. Pavese, Sr. Esquire 1833 Hendry Street Fort Myers, Florida 33902 Scott Barker, Esquire Post Office Box 159 Fort Myers, Florida 33902 John J. Fumero, Esquire Toni M. Leidy, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
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
