Findings Of Fact This cause came on for consideration based upon the Petitioner's (Mrs. R. C. Horton) amended petition filed by her son, Charles H. Horton, which petition opposes the proposed permit/certification that the State of Florida, Department of Environmental Regulation, intends to issue to the Consolidated City of Jacksonville. Particularly, this concerns the Permit/ Certification No. 16-31-0756-2E, Duval County, Florida. The placard number is 01496. The Petitioner in this cause, Mrs. R. C. Horton, resides at 7357 Goodnow Road in Jacksonville, Duval County, Florida, on property which is adjacent to the project site in issue. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has, among other duties, the consideration of permits which involve maintenance dredging. The authority for this activity on the part of Respondent, State of Florida, Department of Environmental Regulation, is found in Chapter 253 and/or Chapter 403, Florida Statutes. The second Respondent in this cause is the Consolidated City of Jacksonville Mosquito Control Branch. The Consolidated City of Jacksonville is a municipality in Duval County, Florida. The proposal in dispute is that request to excavate approximately 9700 cubic yards of material at the site by realignment of 600 feet of canal; widening 250 feet and cleaning and shaping 100 feet of drainage way in the location of Section 56, Township 3 South, Range 27 East, on Eagle Branch, a channelized drainage way in Duval County, Florida. The stated purpose of this work is to prevent an encroachment of the branch onto private property in the area of the 600-foot realignment. An additional purpose is to promote better drainage. The Petitioner's challenge to the Respondent, Department of Environmental Regulations intent to grant the permit was premised primarily on the testimony of Charles Horton and certain photographic slides which he presented in the course of that Hearing. It is Mr. Horton's position that if the work as applied for were completed, there would be erosion to the property of Mrs. R. C. Horton and a problem with siltation at the mouth of the Eagle Branch where it flows into Pottsburg Creek. In the mind of Charles Horton, this theory is supported by the opinion that clearing out and widening will increase the velocity of the water flowing out of the Eagle Branch, thereby promoting advanced erosion, and by the past when the Eagle Branch channelized in the early fifties and there was a problem with siltation and erosion, to the extent that maintenance dredging was necessary in the 1960's. (Moreover, Charles Horton was concerned about the cost considerations involved in the project; however, he was advised by the undersigned that the purpose of the hearing sub judice was not to question the cost, but to consider the effect of the project on water quality and biological resources as contemplated by Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code.) The petitioner did not offer engineering studies or other forms of data which would support the opinion of Mr. Horton. In defense of the project, the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, offered testimony from George R. Knecht, a civil engineer. Mr. Knecht has had experience in this type project over a period of the last 7-1/2 years. He stated in testimony that the aims of the project were to take the creek bed away from private property on the north side of the city maintenance yard by process of realignment, and to clean out the Eagle Branch, thereby decreasing the velocity of the water flowing through that branch in the area of the maintenance yard. (The maintenance yard may be seen on the Respondent, Consolidated City of Jacksonville's Exhibit No. 1 admitted into Evidence.) It was to these ends that the City of Jacksonville submitted its proposals for permit, which may be found as Petitioner's Exhibit No. 1 admitted into evidence. Respondent, State of Florida, Department of Environmental Regulation, received the application and made an application appraisal, which may be found as Respondent, Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. In the process of conducting the appraisal, a biological study was done and other steps were taken to discern the effect of the project on water quality in the area which includes a flood plain at the mouth of the Eagle Branch, which flows into Pottsburg Creek. Among the things that were required as conditions to the granting of the permit were the placing of turbidity curtains at the mouth of the branch during the course of the entire construction; monitoring the turbidity daily on the downstream side of the turbidity curtain during the dredging operation; containing the dredging through the swamp flood plain in the existing channel to avoid destruction of trees of the flood plain, and placing the spoil from the flood plain on the existing berm or removing it to uplands. (These conditions, and a statement of intent to grant the permit, may be found in Petitioner's Exhibit No. 2 admitted into evidence.) The Respondent, State of Florida, Department of Environmental Regulation, also received comments from the Florida Game and Fresh Water Fish Commission and those comments may be found in the Respondent, Department of Environmental Regulation's Exhibit No. 2 admitted into evidence. The intent to grant the permit incorporates the protections suggested by the Florida Game and Fresh Water Fish Commission. The testimony on the approach of the State of Florida, Department of Environmental Regulation to the request for permit was offered by Jeremy Tyler and Dave Scott, employees of the Respondent, State of Florida, Department of Environmental Regulation. Upon consideration of the testimony offered, it is concluded that water quality and biological resources will not be unreasonably affected, and that it would be in keeping with requirements of Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code, to allow the granting of Permit/Certification No. 16-31-0756-2E, Duval County, Florida.
Recommendation It is recommended that the State of Florida, Department of Environmental Regulation, issue Permit/Certification No. 16-31-0756-2E, Duval County, Florida, for the benefit of Consolidated City of Jacksonville Mosquito Control Branch. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles H. Horton, Esquire 757 Goodnow Road Jacksonville, Florida 32216 Carole Joy Barice, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Robert G. Brown, Esquire Assistant Counsel 1300 City Hall Jacksonville, Florida 32202
The Issue Whether respondent should grant petitioner's application for a variance, after the fact, from Rule 17-4.28(8)(a), Florida Administrative Code?
Findings Of Fact In early 1981, petitioner White began putting in pilings on Lot 3, Block 6 of Chippewa Subdivision on the north shore of Choctawhatchee Bay in Walton County. The waters of Choctawhatchee Bay are Class II and the Department of Natural Resources has approved them for shellfishing. With a gas powered pump, petitioner jetted in two rows 40 feet long and ten feet apart of five pilings each and also built a bulkhead paralleling the rows of pilings and ten feet landward of them. On this foundation, he constructed a floor, including a porch floor cantilevered ten feet out waterward of the watermost row of pilings. Work had progressed through most, if not all, uprights on the first floor when the project came to the attention of state and federal environmental authorities, courtesy of a neighbor with whom petitioner had quarrelled (after the neighbor cut down trees on petitioner's property, to improve his view of the Bay). Construction has been at a standstill since. The bulkhead stands against the face of a bluff 20 feet high that is eroding not only as a result of wave action but also because of the deteriorating effect of groundwater in the area. Erosion is occurring at the rate of two feet or more annually. (Testimony of Kerr) There has been no appreciable scouring in front of the bulkhead or the pilings because old tires have been placed in an arc in front of the structure as a sort of revetment. The tires interrupt littoral movement of sand and exacerbate erosion downshore. Although waves can break against the base of the bluff itself, the approximate mean high water line at the time of the hearing was two to three feet landward of the first row of pilings. An area behind the first row of pilings is regularly and periodically inundated. When the pilings were originally placed, the approximate mean high water line was waterward of the pilings. NAVIGATION At high tide water underneath the house and even under the porch is only a few inches deep. Any boat tall enough to hit the porch would draw enough to run aground before getting that far. Ongoing erosion might result in deeper water at some point in the indeterminate future. VEGETATION In the beach area at the base of the bluff, including the project site at the time construction began, giant reed (phragmites communis) and salt meadow cord grass (spartina patens) are the predominant plant species. In full sunlight giant reeds grow as tall as eight feet and spartina patens gets as high as two or three feet. On top of the bluff are sand pine, slash pine, longleaf pine, magnolia, live oak, scrub oak, yaupon, ilex and other upland species. A few upland plants have fallen down from the top of the bluff and taken root at the base of the bluff, but they are a decided minority. There was little vegetation, mainly dewberries, under the half finished house at the time of hearing. According to the uncontroverted evidence, the United States Army had been on maneuvers in the vicinity and some of the approximately 29,000 men involved had selected the area underneath petitioner's structure as their bivouac, trampling the giant reeds and spartina patens underfoot. The giant reeds are rhizomatic and will inevitably reestablish themselves. The structure is high enough above the beach that enough sunlight will reach the ground for spartina patens to grow again, as well. Because of the shadow cast by the structure, however, the mass of the vegetation in the immediate area will be somewhat less than if the sun's rays were wholly unobstructed. These plants provide a habitat for fish, crabs and birds. They are food for microorganisms and larger forms of life alike. Their own food includes nitrogen, phosphorous, potash and carbon, all of which they tend to remove from water running off into the Bay, averting eutrophication. They also take up heavy metals, oils and greases which are washed down from State Road 20 just north of the site. OTHER STRUCTURES, PERMITS About two miles east of petitioner's lot are a house and a bar built on pilings pretty much in the same fashion as the house petitioner has started. They have been there at least since 1970. The Department of Environmental Regulation never issued any permit for their construction. The Department of Environmental Regulation has never permitted the building of a residence, part of which extended over navigable waters. The Department of Natural Resources has issued no permit in connection with petitioner's property or otherwise authorized the use of sovereignty lands or air space above such lands. WASTE DISPOSAL Petitioner had originally planned to install a septic tank on the state right of way, waterward of State Road 20, to receive both sewerage and other wastewater ("grey water"). The DOT had in fact issued a use permit to petitioner authorizing the installation, but DOT only considers highway safety in issuing such permits, and has since revoked the permit it issued to petitioner, pending his obtaining a septic tank permit from the local health department. Percolation tests, which are required before the local health department acts, have not been done. At the hearing, petitioner altered and supplemented his proposal for disposing of waste: He proposed to install a special composting toilet and, instead of a septic tank, a holding tank with a gauge that would indicate the level of grey water in the tank. HARDSHIP Petitioner owns no real estate other than the lot on which he began building this house. He now shares living quarters with his daughter and his widowed mother, who sleeps in the living room. His mother likes to paint, particularly sunsets. He started this project with the intention of building a place for her to live. Petitioner spent time and money on this project in the belief that the county building permit he obtained fully authorized him to do so. He had spoken to a man who built a similar house who said as much. If he is not allowed to use this structure, he will get no benefit from the time and money he has expended in constructing it to this point.
Recommendation Upon consideration of the foregoing it is RECOMMENDED: That respondent deny petitioner's application for variance. DONE and ENTERED this 9th day of May, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of May, 1983. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 Defuniak Springs, Florida 32433 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
The Issue The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a nursing home located at 626 North Tyndall Parkway, Panama City, Florida 32404 (the facility). Petitioner conducted a survey of Respondent's facility on July 16, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding. On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding. Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance. In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten. Additionally, a couple of ant beds were found in the lawn outside the facility. As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management. Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year. After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility. No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called. The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of such a treatment, Respondent approved the treatment and the additional payment. Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004. The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements. As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building, but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9. Thereafter, the “sugar” ant sandwich attack occurred. The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again. At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log. Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004. Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds. Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere. It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success “because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest “elimination.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred. DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2005.
Findings Of Fact In conjunction with the preparation of plans for widening Dale Mabry Highway in Tampa, Florida, DOT in November 1985, filed a map of reservation which includes 6.49 acres owned by Petitioner. The map of reservation was filed and approved by the Hillsborough County Commission in compliance with all applicable statutes and regulations. The property in question is adjacent to the west boundary of Dale Mabry and south of the Waters Avenue intersection. The purpose of the map of reservation is to restrict building on the property for up to five years pending the filing of condemnation proceedings. DOT intends to use the area for storm water management of the runoff from the additional pacing resulting from the widening of Dale Mabry. The parent tract is 8.3 acres in size while the area encompassed within the reservation map is 6.49 acres. The entire tract is undeveloped, but to the north and south of the property along Dale Mabry Highway industrial and commercial development has occurred. The tract was acquired by the Petitioner in 1969 as an investment and has remained essentially in an undeveloped state since that time. During the period between 1969 and the present the value of the property has gradually risen until today it is sufficiently valuable to warrant development and the cost associated therewith. In the distant past most of this area in the vicinity of this property was wetlands. Prior to the acquisition of this tract by the owners, a drainage ditch, channel H, was dug through an area just west of this tract. That has had the effect of draining part of the area and has impacted on the wetlands function performed by this tract. Some dredging was done on this tract before dredge and fill laws were enacted and the area is no longer a pristine wetland. Both Channel H and the earlier demucking have caused some diminution of the property's wetlands effectiveness. No development plans have been submitted to the Department of Environmental Regulation (DER) for the development of this property. Preliminary surveys of the property conducted by DER personnel indicate approximately fifty percent of the property is wetlands and can be developed only by obtaining a dredge and fill permit from DER. Until such time as development plans are received DER will not commit itself to what developments will be permitted on land subject to DER jurisdiction. The highest elevation on this tract is adjacent to Dale Mabry highway. This area is clearly upland and can be developed without a permit from DER. The map of reservation excludes the portion of the tract running along the west Dale Mabry boundary 165 feet deep. This tract constitutes 1.81 acres (8.3 - 6.49) abutting Dale Mabry. The undeveloped tract currently performs a wetland function in that storm water runoff from the east side of Dale Mabry highway flows through a culvert under Dale Mabry in the vicinity of this property then across this property to Channel H. Similarly, storm water runoff from the west side of Dale Mabry runs south to this property thence to Channel H. Prior to selecting the Petitioner's property for ultimate condemnation to use in the storm water management program necessary for the construction on Dale Mabry, the consulting engineers on the project surveyed the area looking for appropriate sites. This site, another site at the southwest junction of Dale Mabry and Waters, and two sites east of Dale Mabry were considered. The sites east of Dale Mabry consisted of borrow pits. One was too high and would require extensive piping to transport the water to Channel H and the other already has water quality problems which could preclude water from this pit being pumped into Channel H (and from there to state waters). The property at the southwest intersection of Dale Mabry and Waters was deemed to be more valuable for commercial development and would require more development as a storm water management area than the site owned by Petitioners. Petitioner's property will require little, if any, changes to serve the intended function as a waste water management area. This will reduce the cost to DOT for so using the property. After tentatively selecting this site for storm water management the consulting engineers went to DER to obtain information on sites DER would suggest to use for storm water management purposes. DER suggested Petitioner's property and advised of water quality problems in the borrow pit. Both the Hillsborough County Environmental Protection Commission (EPC) and DER are involved in the development of environmentally sensitive areas. In 1984 the EPC advised Petitioner that one of EPC's water quality managers had stated that 85 percent of this property was developable and invited Petitioner to submit preliminary plans for developing 85 percent of the property (exhibit 2). No development plans have been submitted. Despite EPC's 1984 letter, DER exercises ultimate jurisdiction over dredge and fill permits involving wetlands and no such property can be developed exceeding that approved by DER. Accordingly, the 85 percent developable ratio used by Petitioner's witnesses is given little credence. Some three weeks before DOT filed its map of reservation Petitioner entered into a contract to sell this property for $800,000. The contract is contingent on the buyer being able to obtain the permits necessary to develop the property. Several meetings have been held between the buyer, DOT and DER personnel to discuss how the property may be developed and still serve DOT as a storm water management area. No plans for such joint use have been presented to DER. Petitioner presented one witness who opined the property was worth $1,000,000. Presumably that appraisal did not include the 1.81 acres fronting along Dale Mabry which is not included in the map of reservation. The contract to sell the property for $800,000 cash comprised the part included in the map of reservation and the tract 165 feet deep fronting on Dale Mabry. This contract which was reached in an arms length transaction indicates the price a willing buyer is willing to pay a willing seller and is a much more credible sum than is the $1 million appraisal offered by Petitioner's witness. If this witness intended his $1 million valuation to be applicable to the 8.3 acre tract, in estimating the loss to Petitioner as a result of the restrictions imposed by the map of reservation, this witness neglected to deduct the value of the 1.81 acres fronting Dale Mabry highway in reaching that calculation. This witness attempted to place a value on the loss sustained by Petitioner as a result of the inability to market the property after the filing of the map of reservation. In making this calculation he assumed 85 percent of the property to be developable and a value of $1 million. These figures are unsupported by credible evidence and the value arrived therefrom is not credible. Further, the filing of the map of reservation only restricts the issuance of a permit in connection with this property. Petitioner is free to do with the property exactly what it has done with the property since it was acquired in 1969. Although no evidence was presented that the project involving the widening of Dale Mabry in the vicinity of this property will be accomplished on a date certain, the project is scheduled to be let for bids in December 1987. Prior to commencing any work on the project condemnation proceedings for all property involved must be underway. Although this schedule is subject to change if funding is not timely provided, this is not an event expected to occur. DER requires the storm water runoff from additional paving resulting from the widening of Dale Mabry be treated before this storm water runoff is discharged into State waters. Accordingly, it is essential that DOT show capability for storm water management before this project can be approved. Section 337.241, Florida Statutes (1985), was enacted as s. 140 ch. 84-309 Laws of Florida, 1984, and amended slightly by s. 2, ch. 85-149, Laws of Florida, 1985. Some of these provisions were formerly found in s. 335.02(3) and (4), Florida Statutes. The purpose of the filing of a map of reservation is to preclude development of the property, while road construction plans are being prepared which include the use of the property, before the acquisition of the property by DOT. During construction involving the widening of US 19 in Pinellas and Pasco Counties, numerous instances arose where development of property needed for storm water management as a result of widening of US 19 commenced after plans for use of the property had been made but before condemnation of the property by DOT. This resulted in an increase in the cost of acquiring the property.
The Issue The issues concern Petitioners' challenge to Respondent's decision to construct a sanitary sewer system to be known as the "Ladybird Waste Water Collection System." That system would be constructed in Escambia County, Florida, and would be funded in part by levying a special assessment on abutting property owners in accordance with Section 153.05, Florida Statutes. Petitioners' property is an abutting property on Ferguson Drive.
Findings Of Fact On November 30, 1989, Respondent passed a resolution calling for the design and construction of a waste water collection system known as the Ladybird Waste Water Collection System. Construction would involve the imposition of special assessments on the lots and parcels to be served by the system. These assessments are contemplated by Section 153.05, Florida Statutes. One of the streets to be served was Ferguson Drive. Petitioners' property is adjacent to that street. The project would be located in Escambia County, Florida. Although the residents in the area to be served by the system, when given the opportunity to request the construction of that system, did not favor the installation by a majority of residents answering the survey, the decision was reached to move forward with the project. The reason for this choice was that an alternative policy reason for carrying out the project, separate and apart from the request by persons living in the neighborhood, would be a determination that the construction needed to be carried out to alleviate a hazard to public health. The public health concerns form the basis for the decision to construct the waste water collection system as found in the Escambia County Utility Authorities Resolution No. 89-19 passed on November 30, 1989, as alluded to before. A survey of the general conditions in the area in question related to soil types and serviceability of the septic tank systems that were employed by the residents in the neighborhood, together with an understanding of the flow regime of sheet flow or storm water runoff, led to the conclusion that this area presents a health problem through the continued use of septic tanks in lieu of the waste water treatment system contemplated here. That perception is borne out by the facts presented at the hearing. The lots on Ferguson Drive average 0.63 acre and some have more than a single family residence located on them. Petitioners' lot is approximately one acre. The smaller lots on Ferguson Drive present problems with the performance of existing septic tanks due to the limited lot size. The area contemplated for service by the subject system is within a natural drainage basin bounded on the east by Interstate 10, on the south by a ridge line, on the west by a sparsely developed area, and on the north by a water body, Carpenter's Creek. The soils in the area are a sandy loam for several feet down. Then from four to ten feet down is hardpan which forms an impermeable layer restricting the percolation of effluent being discharged into the septic tank drainfield. In effect, there is a perched water table which causes problems with the function of the transport and treatment effectiveness. The treatment effectiveness refers to biological treatment. This is especially true in wet seasons. Consequently, water quality problems are promoted. When the drainfields overflow health problems are presented. In 1989 when the survey was being made to consider the appropriateness of the installation of the waste water treatment system, 124 lots were involved in the survey. Fifty-five of the lots were showing present or recent septic tank problems including raw sewage or waste water standing in the yard, running in the streets and in ditches adjacent to those yards. In addition to the health problems caused by the raw sewage, persons living in the neighborhood have disconnected their washing machines because of the inadequacies of the drainfields in addressing treatment of that washwater and by discharging the washwater onto the surface of the yards, they have discharged pathogens. Those pathogens from washwater are another form of health problem. When the surface water runoff or storm water runoff is moving across these properties it picks up the effluent creating greater problems during the transport. With the advent of the waste water treatment system these health problems would be alleviated in a manner that the septic tanks are incapable of providing. Of the areas which Respondent is aware of in Escambia County, which need attention for waste water problems, the neighborhood contemplated for service by the Ladybird Waste Water Collection System presents the most serious problems. Carlton Steen, who has lived in the neighborhood for 30 years, identified some of the problems which he has had with his septic tank. Ten times the septic tank has backed up and allowed the effluent to run into the house ruining his carpet. On June 8, 1991, he had problems with his septic tank, a point in time when it had not rained for four days before June 8, 1991. He has his septic tank maintained in the sense of pumping it out. His problems are so severe that he can't take showers in sequence and he cannot flush the toilets in his house as frequently as he would like due to the septic tank complications. He has disconnected his washing machine and allowed it to put washwater on the surface of the yard. He has seen raw sewage and washwater standing in his yard on raining days. Water stands on his yard frequently and he receives runoff from other properties. In addition to seeing the sewage, he has detected the sewage by its smell. Robbie Underwood lives in the neighborhood adjacent to the Porters. He has lived there for two years. His septic tank is in the back yard and he has experienced problems with it. He has problems with standing water south of where the septic tank is located. Water stands in his yard constantly. He has seen sewage and washwater in the yard and detected it by its appearance and odor. During the two years that he has lived at the residence he has had his septic tank system pumped out once but it filled back up in five days. The problems are so severe with his septic tank that he does not allow his six kids into that portion of the back yard where the septic tank drainfield is found. By contrast Petitioners and Katherine Johnson who also lives on Ferguson Drive have not experienced problems with their septic tanks. Notwithstanding the good fortune of the Porters and Ms. Johnson, the proof at hearing demonstrates a prevalent condition of ineffective septic tank systems in the neighborhood and the need to install the waste water treatment system to remediate the condition and protect public health. The surface water or storm water flow regime is such that the dangerous effluents make their way into Carpenter's Creek and affect the water quality of that water body. In addition to conducting a survey to ascertain the position of the residents in the neighborhood concerning the installation of a sanitary sewer system, Respondent received petitions that had their origins with certain residents in the neighborhood. The latter petitions did not lead to the action to construct the system. The final decision to construct the Ladybird Waste Water Collection System was reached by action of the Escambia County Utility Authority in Resolution No. 91-7 passed on January 31, 1991, following the publication of notice in a newspaper published in Escambia County. That notice reflected that the meeting would be held on January 31, 1991. Petitioner Ronnie M. Porter attended that meeting and could have spoken in opposition to the decision. He elected not to offer his remarks, preferring instead to file the petition which lead to the present hearing. Petitioners' complaints concern the contention that people didn't read the legal notices within the newspaper that alerted the public to the pending meeting of January 31, 1991. Nonetheless, Petitioner Ronnie M. Porter found out about the meeting and attended. He further observed that given the formal survey by the Respondent which did not eventuate in a majority of respondents calling for the installation of the waste water treatment system and the actions of citizens in the neighborhood not leading to sufficient interest in the project to cause it to occur to his knowledge, he was not concerned that the project would be pursued. Eventually he found out that the project had not been abandoned. It can be inferred that this resulted in his attendance at the meeting in which the decision was reached to pursue the project. Mr. Porter believes that if some specific mailout had been directed to the residents in the neighborhood a greater number of those persons would have had knowledge of the pendency of a decision on the project which was reached on January 31, 1991. In particular, he has no confidence that the newspaper advertisement and notice placed in accordance with Section 153.05, Florida Statutes, was effective in the neighborhood. On the other hand, he recognizes that the legal notice in the newspaper suffices and that the mailout was not mandatory. Mr. Porter also complains that those persons in the neighborhood who do favor the installation of the waste water treatment system do not recognize the true cost to them by way of assessment to support the system. Mr. Porter realizes that small lot sizes such as exists with a number of lots of Ferguson Drive can cause a failure in the septic tank system; however, he believes that people with those problems should bear the burden of the cost of the installation of the system. In this thinking, assessing him for a system he does not need is not fair.
Recommendation Based upon consideration of the fact found and the conclusion of law reached, it is, RECOMMENDED that a final order be entered which dismisses the petition for review of the decision to construct the Ladybird Waste Water Collection System and to fund a portion of the costs through an assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July, 1991. CHARLES C. ADAMS, 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 9th day of July, 1991.
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40- 50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate. This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
