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.
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
The Issue The issues in this case are whether Respondent violated Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact PFSG, Inc., d/b/a US Lawns of Destin (US Lawns),2 submitted a Pest Control Business License Application to the Petitioner, listing Mr. Lewis as its certified operator in charge for lawn and ornamental pest control, effective August 9, 2007. Mr. Lewis’ certificate number is Jf 13685. US Lawns had been operating on an emergency certificate from June 6, 2007, until Mr. Lewis’ employment on August 8, 2007. In its application for a business license, US Lawns requested that its emergency certificate be canceled as of August 8, 2007. In order for a pest control company to operate, the company has to have a certified pest control operator in charge of the pest control activities at the licensed business location. If a company does not have a certified operator to serve as the certified operator in charge, an emergency certificate can be issued and renewed monthly up to a year, allowing an employee who did not have a certified operator’s certificate to serve as the certified operator in charge. As the certified operator in charge for US Lawns, Mr. Lewis applied to Petitioner for a pest control employee identification card, effective August 9, 2007. He listed the commencement of his employment with US Lawns as August 9, 2007. He also stated that his last employment with a pest control company had ended on June 11, 2007. A pest control employee identification card was issued to Mr. Lewis by Petitioner. Mr. Lewis’ wife died on July 4, 2007. Petitioner received a complaint that Mr. Lewis was not working full time for US Lawns and was allowing US Lawns to use his certificate to maintain its business license. Based on the complaint, Michael Walters, who is employed by Petitioner as an environmental specialist II, began an investigation. Mr. Walters went to US Lawns' office and made an inspection. On October 31, 2007, Mr. Walters went to see Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which stated: I work full time with U.S. Lawns of Santa Rosa Beach. I have been part time since the loss of my wife, but I do go to work at least once a week and check on things. I do all the training for card holders and such. As soon as I feel better I should be back fulltime. I have been there around 5 yrs., minus one year with another company. In his request for an administrative hearing, Mr. Lewis stated: “I was on vacation for 4 weeks, due to the death of my wife,” and I was not working part time ever. The evidence is clear that Mr. Lewis was not working full time for US Lawns from the time of his wife’s death until at least the date of his affidavit, October 31, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Lewis violated Subsection 482.121(1)(a) and 482.121(1)(b), Florida Statutes, and revoking his certified operator’s certificate. DONE AND ENTERED this 19th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 19th day of August, 2008.
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue The issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found. Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation: On February 28, 1977, it is alleged that Respondent and/or its agents, performed pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated the following Administrative Code sections and/or statutes: Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Failed to perform the fumigation of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter 10D-55.111(4), Florida Administrative Code. On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code. During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code. Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter 10D-55.143(1), (2) and (3), Florida Adminis- trative Code. Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code. During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Shumpert/Graham Case On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code. On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During April 22, 1977, Respondent performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation, Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code. During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola, Florida, and during the course of such treatment, through its agent and employee, Steven R. `Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Respondent used Phostoxin in resi- dential fumigation in violation of Chapter 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code. During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. Respondent, during May 23, 1978, failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code. Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee, in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes. During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or by the use of methods and equipment generally suitable and accepted as good industry practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code. Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes. The Hinote Case During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and no treatment was required, in violation of Chapter 10D-55.104(4), Florida Administrative Code. Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative of Section 482.152(1), (2), (4), and (5), Florida Statutes. William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978. During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.) The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide. During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence. Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.) Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists. Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.) When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/ On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.) Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding. Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28, 29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/ Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist. Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes. Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.) According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.) Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent. Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence. Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978. According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/ Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.) Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson. J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass. Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic. Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers. Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, Recommended: That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years. In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged. RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Vsquire Department of IIIS 160 Governmenta] Center Pensacola, Florida 32522 Larry Parks, Esquire Murphy, Beroset and Parks 216 Government Street Pensacola, Florida 32501 Alvin J. Taylor, Secretary Department of IRS 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= STIPULATION TO CONSENT FINAL ORDER =================================================================
The Issue The issue is whether Respondent, Southwest Florida Water Management District (the "District"), should approve the application of Respondent, Florida Department of Transportation ("DOT"), for modification of a standard general environmental resource permit: modification permit no. 44011760.010 (the "modification permit").
Findings Of Fact Petitioner owns a developed parcel of mixed-use property in Pinellas County, Florida, known as the U.S. 19 Commerce Center (the "Commerce Center"). The Commerce Center is proximate to U.S. 19 and is located within the Alligator Creek Watershed. DOT is the state agency charged by statute with responsibility for the construction, maintenance, and operation of the State Highway System, including U.S. 19. DOT proposes a highway reconstruction project of a portion of U.S. 19 that is proximate to the Commerce Center and located within the Alligator Creek Watershed. DOT seeks the modification permit from the District in order to complete the highway reconstruction project. The District is a political subdivision that operates under the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes (2001). (All statutory chapter and section references are to Florida Statutes (2001) unless otherwise stated.) The District is responsible for regulating, among other things, environmental resource permitting in Pinellas County, including the permitting for any regulated activity within the Alligator Creek Watershed. The area of concern for the District in this case involves a sub-basin within the Watershed that is crossed by several channels and drainage ditches including those identified by the parties as Channel A, Channel G, and the "east-west ditch." The channels and ditches in the sub-basin eventually flow into the ultimate outfall for the entire basin. On June 21, 1999, the District issued Environmental Resource Permit ("ERP") No. 4411760.008. The parties refer to that permit as the ".008" permit or the "original permit." Petitioner did not challenge the original permit. The original permit authorized DOT to construct a surface water management system for anticipated runoff caused by the reconstruction of U.S. 19 in the vicinity of Drew Street and the Commerce Center (the "original project"). DOT designed the original project to collect post development stormwater runoff, treat the runoff, and discharge it. The original project included several surface water detention ponds east of U.S. 19 in the vicinity of the Commerce Center. The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1, and 4E2. DOT intended to locate Pond 4B on Commerce Center property. However, DOT and Petitioner were unable to agree on terms, and DOT filed a condemnation action in circuit court pursuant to DOT's power of eminent domain. DOT withdrew the condemnation action against Petitioner sometime before January 19, 2001. On January 19, 2001, DOT applied to the District for approval of a modification to the original permit. On June 1, 2001, the District issued permit modification No. 44011760.010. The parties refer to this second permit alternatively as either the ".010" permit or the "modification permit." This second permit is the modification permit that is at issue in this proceeding. The modification permit eliminates Pond 4B and authorizes the addition of Pond 4C to be located on property that is not owned by Petitioner. The modification permit also combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds 4E1 and 4E2 into Pond 4E. In addition, the modification permit moves the point of discharge in the east-west ditch to the west closer to U.S. 19 and farther from the Commerce Center; places 7.72 acre-feet of fill in the 100-year flood plain; compensates for the fill by equivalent excavation and storage modeling; and places impervious liners in two ponds (the "modified project"). The modified project slows the rate of discharge in the system and increases water quality treatment. The modified ponds will have more storage volume, and the discharge rates from the ponds will be lower. The modified ponds will peak at hour 12 of a 25-year, 24-hour storm event. The modified project will discharge into Channel A and the east-west ditch. Petitioner challenges the modification permit, in relevant part, on the ground that DOT does not own the property required for the modified project and cannot acquire control of the property through the power of eminent domain. During the hearing, Petitioner represented that DOT had previously begun two condemnation actions to acquire property necessary for the original project but had entered voluntary dismissals of both actions. Petitioner argued that Florida Rule of Civil Procedure 1.420 bars DOT from instituting any future eminent domain actions to obtain control of property needed for the modified project. The evidence does not reveal the underlying facts associated with the condemnation actions referred to by Petitioner. If Petitioner were to demonstrate the legal necessity for DOT to acquire control of a portion of Commerce Center property in order to complete the modified project, there would be no evidentiary basis for a finding that the portion of Commerce Center property required for the modified project would be identical to that DOT previously sought to condemn twice in connection with the original project. Petitioner did not demonstrate the legal necessity for DOT to acquire control of Commerce Center property in order to complete the modified project. Applicable rules do not require ownership of property by entities with the power of eminent domain, including DOT. Rule 40D-4.101(3). Ownership is not a condition of issuance but is merely information that must be included in the permit application. Rule 40D-4.101(2). The original ALJ in this case issued a prehearing order that prohibits Petitioner from challenging DOT's ownership of the property needed to complete the modified project. The law of the case established in the prehearing order, prohibits Petitioner from challenging: the legal right of DOT to discharge into the east-west ditch; the legal ownership or control of the area of the project where Pond 4E is to be located; and the legal right to utilize Petitioner’s stormwater "retention" area. The preponderance of evidence shows that DOT currently owns all of the property necessary to construct the modified project. Furthermore, the modification permit specifically provides that DOT cannot begin construction until DOT owns or controls all property necessary for the modified project. The District correctly reviewed the application for the modification permit. The District correctly applied the design and performance criteria set forth in the Basis of Review for Environmental Resource Permit Applications (the "BOR"). The BOR is adopted by reference in the District’s rules. Rule 40D-4.091(1). The parties entered into several stipulations in addition to those previously discussed. In relevant part, the parties stipulated that no special basin criteria apply to the modified project. The parties also stipulated to the accuracy and veracity of the Alligator Creek Watershed Study (the "Alligator Creek Study"). The Alligator Creek Study is the only known source of both elevations and timings during rainfall events for the area surrounding the modified project. Among other things, the Study predicts stormwater levels in various locations during severe rainfall events. The predictions are based upon existing drainage capacity within the Alligator Creek basin and also upon certain assumptions regarding conditions that exist at the time that a rainfall event begins. The Alligator Creek Study, for example, predicts a high water level in Channel A of 23.28 feet at hour 16 during a 25-year, 24-hour storm event. The prediction is based upon the capacity of the receiving water-body, the current rate at which surface areas currently discharge into that water-body, and the assumption that the rainfall event is uniform across the entire Alligator Creek basin. The Study also assumes mean high tide at the ultimate outfall of the basin. The stipulations between the parties leave several issues to be determined. One issue is whether the east-west ditch is an historical discharge location in the area surrounding the modified project. The original permit and the modified permit authorize runoff to discharge into two locations. One location is the east-west ditch, and the other is Channel A. Petitioner claims that the east-west ditch is not an historical discharge location but is a detention facility constructed by Petitioner and is Commerce Center property that DOT cannot utilize in the modified project. In a prehearing order, the original ALJ in this case prohibited Petitioner from raising the arguments that the east-west ditch is not an historic discharge location and that DOT is not legally allowed to discharge into the ditch. Nevertheless, Petitioner submitted evidence relevant to the claim that the east-west ditch is not an historical discharge point. The modified project is located in an open drainage basin because the basin does not satisfy the definition of a closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable discharge for projects in an open basin is the historic discharge. BOR 4.2.a.1. The District determines historic discharge first by reference to an existing or permitted site. BOR 4.2.a. The District considers a discharge at a point that has been permitted by the District to be a legally allowable discharge. The east-west ditch is a permitted discharge point in the original permit, and Petitioner does not challenge the original permit. The modified project moves the discharge point in the east-west ditch to the west farther from Commerce Center property. That change does not alter the determination that the modified project utilizes an historic discharge point authorized in the original permit. The discharge point for the modified project is within a permitted location in the original permit. In any event, Petitioner failed to show any adverse impact caused by moving the discharge point in the east-west ditch further west away from the Commerce Center. Putting aside the original permit, Petitioner claims that the east-west ditch did not historically extend west to U.S. 19 but was a detention pond required by the City of Clearwater as a condition of approval for the original development of the Commerce Center. The District looks back in time until 1984 to determine historic discharges. The historical drainage flow patterns for the locale of the modified project were in existence as early as 1971. The preponderance of evidence shows water flowing in the historical drainage pattern to the area of the east-west ditch. Prior to 1984, Petitioner excavated the east-west ditch to further enhance the drainage flow pattern. This is the drainage flow pattern that exists at the project location today. Another issue left unresolved by the stipulations between the parties is whether DOT provided reasonable assurances that the modified project will not cause adverse water quantity impacts to receiving waters and adjacent lands in accordance with the requirements of Rule 40D-4.301(1)(a). The appropriate standard for determining water quantity impacts for the modified project is the peak rate of runoff, rather than the volume of runoff. Compare BOR 4.2.a (defining allowable discharge in an open basin by reference to peak rates) with BOR 4.2.c (defining allowable discharge in a closed basin by reference to volume). Petitioner stipulated that there are no special basin criteria associated with the modified project, and Petitioner did not challenge the validity of the District's rules including those that measure water quantity impacts by peak rates of discharge. The District required DOT to calculate pre- development and post-development rates of runoff based on the District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution. BOR 4.2.b. The data utilized by DOT are based on the assumption that rainfall will occur simultaneously over the entire basin. The assumption supports calculations based on a greater quantity of rainfall over the entire basin than would occur if it were assumed that rainfall began in a portion of the basin and then proceeded to cover the entire basin. DOT provided reasonable assurances that post- development discharge rates in the modified project will not exceed pre-development rates. Post-development discharge rates for the east-west ditch and for Channel A are 50.7 and 13.5 cubic feet per second ("cfs"), respectively. The respective pre-development discharge rates for the east-west ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the post-development rates of discharge for the modified project are less than those for the original project. The area surrounding the modified project is flood- prone. Petitioner claims that the District should have reviewed the modified project for volume of runoff as well as rates of discharge. District rules require the District to consider volume in closed basins but authorize the District to consider only rates of discharge in open basins, such as the Alligator Creek basin, unless otherwise specified. The only specified exception is for the Delaney Creek basin. While some open drainage basins can be flood-prone and volume-sensitive, District rules do not distinguish between open basins that either are or are not flood- prone. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2. The exercise of agency discretion that considered rates of discharge rather than volume was consistent with applicable rules and prior agency policy. The evidence does not show any prejudice to Petitioner from the failure to consider volume. Petitioner failed to show that the amount of annual volume would increase once the modified project is completed. Aside from volume, other District rules prohibit projects that cause adverse flooding to the property of others. Rule 40D-4.301(1)(b), in relevant part, requires DOT to provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property. Rule 40D-4.302(1)(a)1, in relevant part, requires the District to consider a system’s effect on the property of others. The District measures the potential for flooding, in relevant part, by encroachment into the 100-year flood plain. District rules permit no net encroachment into the 100-year flood plain. However, the rules do allow for encroachment into the 100-year flood plain if the encroachment is offset. The modified project encroaches into 7.72 acre-feet of flood plain. As partial compensation for the loss, DOT provides 2.46 acre-feet of equivalent excavation. DOT compensates for the remaining 5.26 acre-feet of encroachment by storage modeling. Storage modeling consists of computer models that demonstrate how the ponds in the modified project will accommodate expected stormwater runoff from a 100-year, 24- hour rainfall event. The storage modeling assesses the storage capacity of the ponds on the basis of rainfall and tailwater. Tailwater is a downstream water condition that can be measured in terms of elevation, i.e., stage; and in terms of time, i.e., the hour in which a particular stage occurs. DOT's storage modeling demonstrates that the ponds in the modified project will first drain downstream and then fill from backflow that occurs as tailwater stages increase. DOT provided the storage modeling compensation in Pond 4E by designing it to take in backflow from the east-west ditch and Channel A during a 100-year storm event. The increased backflow capacity of Pond 4E provides the additional storage necessary to preclude any net encroachment into the 100-year flood plain. The storage modeling by DOT demonstrates that the modified project will not exceed the high water levels established in the Alligator Creek Study for a 100-year storm event. The storage modeling and the equivalent excavation provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property; and will not adversely affect the public health, safety, or welfare or the property of others. The storage modeling complies with the requirements of in BOR 7.7.3 for the District to review variable tailwater stages if they have a significant influence on the project design. The District considered the impact of the modified project on variable tailwater conditions based on data utilized for the Alligator Creek Study. Data utilized in the Alligator Creek Study are based on the assumption that rainfall during a 24-hour rainfall event will occur simultaneously over the entire basin. The assumption does not take into account 24-hour rainfall events that begin downstream from the modified project and increase tailwater stages before the ponds in the modified project can drain sufficiently to accommodate backflow from the increased tailwater stages. Petitioner's expert opined that the modified project could cause flooding of Commerce Center property if: the tailwater stage downstream from the modified project were higher than that assumed in the study; and a rainfall event started downstream in the Alligator Creek basin and moved across the basin toward the modified project. The expert determined that the earlier increase in tailwater stages could cause the peak runoff from the storm at approximately hour 12 to coincide with peak high tailwater stages. The expert opined that the coincidence of high water level in Channel A and the east-west ditch during the time of peak runoff from DOT's drainage system could overload Channel A and the east- west ditch and cause flooding on Commerce Center property. The opinion of Petitioner's expert was reasonable and credible as far as it goes. However, the expert opinion was not persuasive. Although the opinion was supported by underlying facts or data sufficient for admissibility, within the meaning of Section 90.705, the underlying facts and data were not persuasive. The underlying facts and data consisted of some information from two storms identified as: a three-year storm on July 15, 2001; and Tropical Storm Gabrielle on September 14, 2001. Petitioner's expert assumed a set of circumstances under which he opined that the modified project would fail but did not support the assumption with persuasive evidence. Information from the two storms relied on by the expert does not outweigh the modeling done by DOT based upon the Alligator Creek Study, the District’s 25-year design storm event, and other relevant District criteria. Petitioner did not submit a model different from that submitted by DOT and did not submit any evidence that the storage modeling presented by DOT was incorrect. The facts and data underlying the expert opinion are flawed for other reasons. The expert opinion utilizes numbers for the high tailwater mark in a 25-year design storm that were calculated in the Alligator Creek Study. Those numbers are based upon uniform rainfall across the basin. If rainfall does not occur simultaneously over the entire basin, the water draining into the basin will be less than that assumed in the Alligator Creek Study for a 25-year design storm. In a 25-year storm in which rainfall does not occur simultaneously over the entire basin, the high water level in Channel A will not be 23.28 feet, as shown in the Alligator Creek Study, but will be some unknown lesser elevation. If rain does not fall uniformly across the entire basin, the peak hour of runoff from the modified project may not occur at hour 12, and the high water level in Channel A may not occur at hour 16. The tailwater condition assumed in the Alligator Creek Study and the timing of that tailwater condition are both consistent with a simultaneous, across-the-basin rainfall event of 8-9 inches over a 24-hour period. In order to move the start of the tailwater condition, it would be necessary to recalculate the expected high tailwater conditions based upon rainfall occurring at different times throughout the basin. If a rainfall event is not uniform across the basin, the tailwater data underlying the expert opinion would decrease. The design-storm underlying the expert opinion would produce a storm surge of such magnitude that it would likely flood 75 percent of Pinellas County. The resulting storm surge or high tide would be much larger than the rainfall from a 100-year storm. Rule 40D-4.301(1)(c) requires DOT to provide reasonable assurances that the modified project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Petitioner claims that the east-west ditch is either a detention or retention pond, within the meaning of BOR 1.7.5 or 34, and that the modified project will adversely affect the pond by discharging into it. The original ALJ established the law of the case in an Order on Motion to Strike that precludes Petitioner from raising this issue. Nevertheless, Petitioner claims that the east-west ditch is either a detention or retention pond. No part of the east-west ditch, including that part widened by Petitioner in 1984, is a detention or retention pond within the meaning of BOR 1.7.5 and 34. The post-development runoff rate into the east-west ditch from the modified project will be less than both the pre-development run-off rate and that rate previously authorized in the original permit. The post-development runoff rate from the modified project will not adversely affect any storage capabilities inherent in the ditch. DOT provided reasonable assurances that the modified project will not cause adverse impacts to existing surface water surface storage and conveyance capabilities. Rule 40D-4.301(1)(e) requires DOT to provide reasonable assurances that the modified project will not adversely affect the quality of receiving waters. The modified project will utilize wet detention ponds to provide water quality treatment. BOR 5.2.a requires wet detention ponds to treat the first inch of runoff; include a minimum of 35 percent littoral zone; and discharge the system’s treatment volume in no less than five days, with no more than one-half of the total volume being discharged within 2.5 days. The wet detention ponds in the modified project provide adequate water quality treatment by allowing stormwater to be stored in each pond for five days and by allowing sediments to settle on the bottom of the pond. Vegetation will occur within the ponds and provide for the uptake of the nutrients in the water. Skimmers will retain oils and greases in the pond. The ponds in the modified project will hold more water for a longer time than those in the original permit. DOT provided reasonable assurances that the modified project will not adversely affect the quality of receiving waters in accordance with the criteria in BOR 5.2.a. Petitioner's expert opined that water quality would be less than that required by District rules if the hypothetical events described in paragraphs 42 and 44 were to occur. However, Petitioner failed to provide persuasive underlying facts or data to support the expert opinion. BOR 5.2.a requires water treatment for only the first one inch of runoff because that is where oils and greases are located. The remaining runoff during a 25-year, 24-hour storm does not require water quality treatment. Rule 40D-4.301(1)(g) requires DOT to provide reasonable assurances that the modified project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042. DOT satisfied the requirements of the rule by showing that during a 100-year storm event, the modified project will preserve off-site water levels. Rule 40D-4.301(1)(i) requires DOT to provide reasonable assurances that the modified project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. DOT satisfied the requirements of the rule. The relevant evidence provided by DOT is based on the Alligator Creek Study. The Study is accepted in the engineering field as accurate, and the parties stipulated to the accuracy and veracity of the information contained in the Study. The modified project meets the conditions for permit issuance in Rules 40D-4.301 and 40D-4.302. The proposed project is located in a right-of-way dedicated for public highway purpose as required by Rule 40D-40.302(3)(a). The modified project will not drain lands outside of the jurisdiction of DOT within the meaning of Rule 40D- 40.302(3)(b)1. The modified project will not lower the dry season groundwater table outside of the project area within the meaning of Rule 40D-40.302(3)(b)2. The modified project will not lower groundwater tables where doing so would adversely affect existing legal users. BOR 4.6.4. The wet detention ponds in the modified project will be lined with an impermeable plastic liner which will "isolate" the stormwater from the adjacent groundwater table, will prevent the lowering of that table, and will preserve the water table as is. After installation of the liners, the water table will rise for approximately 30 days and then return to the pre-liner level. The modified project will not lower the groundwater table outside of the project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Standard General Environmental Resource Permit No. 44011760.010.
