The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
Findings Of Fact Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential). The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage. Lack of guest parking would create a hardship of sorts on Thomas. There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.
Findings Of Fact THE PARTIES CMI is a Florida corporation authorized to do business in Florida. CMI owns a mine site as is depicted in the permit application, which mine site is known as "Pine Level". Alan R. Behrens owns residential property approximately two miles from Pine Level, which abuts Horse Creek. He maintains an individual well for domestic and other purposes, and is a substantially affected person under the statute. Charlotte County is a government entity and a political subdivision of the State of Florida, and is a substantially affected person under the statute. The City of North Port is an incorporated municipality of the State of Florida, and is a substantially affected person under the statute. The Environmental Confederation (ECOSWF), a citizens group, is a substantially affected person under the statute. The District is the agency with the responsibility for reviewing and ruling upon CMI's water use permit application. APPLICATION AND PROCESS CMI proposes to operate a phosphate mine facility at "Pine Level" ("site"). The site is located approximately seven miles west of Arcadia, DeSoto County, Florida. The mine reserves at the site are approximately 17,700 acres. 9,000 to 10,000 acres are projected for mining. In 1978, Consumptive Use Permit No. 200103, was issued and in 1986, the current owners purchased the corporation which held the permit, and changed the name of the corporation to CMI. The Industrial Water Use Permit has not been used since it was issued to a prior owner of the site, and provided for average daily withdrawals of 13.6 mgd from wells. In 1984, this permit was renewed and modified to provide for average daily withdrawals of 12.8 mgd from deep wells. The groundwater withdrawals currently sought by CMI is 6.9 million gallons per day ("mgd") average daily withdrawal, which totals include 5.1 mgd from deep wells for use in the amine flotation process and 1.7 mgd for sealing the matrix slurry pumps. This reduction to 6.9 mgd in permitted withdrawals is a significant reduction. In addition, the proposed permit allows 3.7 mgd to be withdrawn from the surficial aquifer by dewatering mine cuts. In November, 1990, CMI submitted an application for renewal. In November 1991, CMI submitted to the District a revised Water Use Application No. 200103.02 ("application") to renew and modify the existing water use permit. The District requested more information, and CMI provided additional information and supplemental responses to aid in the review and evaluation of the application. The District prepared and submitted a Notice of Intent to Issue Permit and the District staff has prepared a "draft" Permit No. 200103.02 authorizing the withdrawal of the quantities requested in the application with certain conditions. In addition to renewal and modification of the water use permit, which is the subject of this proceeding, CMI will be required to participate in numerous regulatory reviews and permitting procedures (i.e. a development of regional impact evaluation, a federal environmental impact statement, federal approvals under the Clean Water Act [including a national pollutant discharge elimination system ("NPDES") permit], and a conceptual reclamation plan review) before CMI may commence mining, and consequently, begin any withdrawal of water. The mining process will utilize large walking draglines to excavate over burden and stack it beside the active mining area for land reclamation. The ore material called "matrix" will be dug up by the draglines, placed into an earthen pit where it will be slurried with a high pressure water jet. A pump will pick up this slurried matrix material, pump it back to the processing plant where it will first go through various separation devices, including screens and cyclones. The course material termed "pebble" will be separated and parts of that will be directly saleable as a product. The bulk of the phosphate product is contained in intermediate-sized material called concentrate feed. The concentrate feed consists of ore and sand. The ore is separated from the sand in a process called "flotation". The flotation process is a two stage process that ends up separating the tailings sand, which can then go back to the sand-clay flocculation and mixing units, and be pumped out ultimately for land reclamation back in the mine-out areas. The phosphate product which is called "wet rock", is placed in storage bins where it can drain, and be loaded onto rail cars for shipment. The "amine flotation process" is the second stage of flotation where sand and phosphates are separated. This process requires clean water for the amine flotation phase, because any amount of contaminants, including organic reagents, will adversely affect the process. Any mineral particles must be removed so that the amine may attach itself to the phosphate. Any contaminants will destroy or significantly and adversely affect not only the phosphate recovery, but the entire flotation process. Deep well water is requested for use in the amine flotation process because it is clean. All phosphate mines in Florida currently rely on deep well water. 5.2 mgd is the minimum amount of "clean" water needed to assure efficient processing of the amine flotation process of the mine beneficiation plant. Deep well withdrawals are also commonly used for the purpose of sealing or protecting the packing of pumps at various points in the mine system in order to avoid damage to the equipment. These wells are often referred to as "sealing water wells". The Pine Level mine will require 1.7 mgd for this purpose. Water for the sealing water wells must be clean and clear in order to effectively seal pumps for leaks. The Pine Level project will provide 400-500 construction jobs during the construction period. It will provide approximately 200 full-time jobs with an annual payroll of about five million dollars once it is in operation. It will result in about one thousand additional jobs providing services to the development. It will pay in excess of one million dollars a year to DeSoto County in ad valorem taxes. TECHNICAL CRITERIA The water use is a reasonable and beneficial use. 5.2 mgd groundwater withdrawal is "necessary to fill a certain reasonable demand." The technical criteria relating to water level or rates of flow impacts set forth in Rule 40D-2.301(1)(d), Florida Administrative Code, are not applicable in this proceeding because the District has not established any regulatory levels or rates of flow for the area encompassed by the application. In addition, this presumption only addresses surface water withdrawals. Phosphate mining is a beneficial activity and is consistent with the public interest. There is no significant risk of salt water intrusion. The water use withdrawal will not degrade the water quality in the aquifer by causing any contamination plume to spread. There have been no contaminant plumes identified on site. GROUNDWATER IMPACTS There is sufficient ground water at the site of a suitable quality and quantity to support the proposed phosphate mining and beneficiation activities. The local hydrogeology at the site consists of an upper layer known as the surficial aquifer. Rain penetrates the surficial aquifer to flow vertically to the water table. The water that is not consumed by vegetation at this layer will flow either to a nearby stream channel or will leak down through a semi- confining layer. The water continues to seep vertically into the lower underlying limestone aquifers. There are three limestone water-bearing layers: the intermediate, the Suwannee or Upper Floridan, and the Avon Park or Lower Floridan aquifers, respectively. The intermediate and the underlying Suwannee aquifer are separated by another semi-confining layer. Likewise, the Avon Park aquifer and the Suwannee aquifer are separated by another semi-confining layer. At the site, wells in the intermediate aquifer will draw water to seal the bearings on the matrix slurry pumps. There will be one deep well in the Suwannee and one deep well in the Avon Park to draw for the beneficiation plant. The groundwater modeling performed by CMI simulated the four aquifers, that is, the surficial aquifer and each of the three limestone aquifers. An Aquifer Performance Test ("APT") was performed at the site. The data generated from the APT was used to calculate various aquifer parameters, for example, transmissivity, storage coefficient, and leakiness. This information was then used in setting up the groundwater flow model that ultimately was incorporated into the application. During the District staff's review of the application, the deep well withdrawal quantities requested by CMI were compared with approximately 6 other phosphate mines of comparable size, acreage, and type of operation. As a result of this comparison, the staff found CMI's requested use to be less than the other six phosphate mines. The use of recycled water in the amine flotation process in place of deep well water in the past by CMI has proven unsuccessful because a constant temperature and a constant ph level could not be maintained with recycled water, and recycled water contains traces of fatty acids and oils, which also negatively affect the amine flotation process. C.F. Industries, Inc., has been operating a phosphate mine in Hardee County, Florida, since 1978. C.F. Industries, Inc., has since 1983 at the Hardee County mine, successfully substituted recirculation water for deep well water for operation of the amine flotation circuit on a routine basis. C.F. Industries, Inc., presently plans to employ substitution of some recirculation water for deep well water in a new yet-to-be permitted mine. C.F. Industries, Inc., at its existing Hardee County mine requires use of deep well water for start-up purposes to "charge" the system. C.F. Industries, Inc., at its existing mine, uses deep well water to respond to abnormal operational conditions, including excessive rainfall events, when the quality of the normal recirculation water is not suitable for substitution of deep well water. Neither CMI, nor District staff was aware prior to hearing, that the C.F. mine was successfully substituting recycled water for deep well water in the amine flotation process. At the time of making the representations to the District about necessary water quality requirements of the flotation process, CMI had a study, entitled, Amine Water Evaluation, Pine Level Project, July 27, 1984, ("Pilot Plant Study"), which concluded that deep well pumping and discharge could be reduced by use of water drawn from mine cuts. The Pilot Plant study was site specific to CMI's proposed phosphate mine. The Pilot Plant study bench tests were verified in the same pilot plant facility CMI uses to verify the grade of ore on the Pine Level Site. The Pilot Plant study or its results were known to CMI officials or experts involved in the permit application at issue in this case. CMI did not inform District staff of the existence or conclusions of the Pilot Plant study. The Pilot Plant study indicates that CMI could reduce its water usage by substituting water from mine cuts for deep well water. CMI did no studies to determine if the substitution of mine cut water for deep well water, as suggested by the Pilot Plant Study, was feasible to implement. SURFACE WATER IMPACTS The phosphate ore (matrix), is extracted by an excavation machine called a "dragline", which opens mining cuts of approximately 32 to 35 feet in depth, 330 feet wide, and up to 4,000 feet long. Seepage occurs into the mine cuts from the water table, and must be pumped out in order to see and extract the matrix. This dewatering is also necessary to protect the draglines against slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculation system which is operated for purposes of collecting and recycling water within the mine complex. The matrix that is extracted from the mining cut is placed in a shallow excavation near the cut, and is converted to a slurry and, thereafter, transported hydraulically to the mine processing (or "beneficiation") plant. The beneficiation plant uses considerable quantities of water, utilizing supplies from within the mine system (i.e. surface water) and water from deep wells. Sand tailings and sand and clay mixture are by-products of the mining process. Recycled water is used to transport waste clay and sand from the plant to the disposal and reclamation areas. Reclamation takes 1-2 years for areas reclaimed with sand tailings and 5-6 years for areas reclaimed with a sand-clay mixture. Groundwater that is used in the processing plant is recycled. Water within the mine is recycled a number of times, and CMI's proposal calls for 90 percent of the total mine demand to be satisfied by this recirculation system and approximately 96 percent of the water used is recyclable water. DEWATERING AND WATER BALANCE CMI's mine pit dewatering activities result in the withdrawal of water from the surficial aquifer. A "water balance" demonstrates that requested quantities relate to reasonable mining, processing, and dewatering needs. The "water balance" for the mining operation evidences a balance between sources and uses/losses. The sources of water in the CMI water balance that input to the mining operation include groundwater from wells (6.9 mgd), mine cut dewatering or water table drainage (3.7 mgd), and collected rainfall (3.1 mgd). Uses and losses associated with the mining operation include water retained in clays (6.7 mgd), water shipped with final product (.7 mgd), evapotranspiration and evaporation (3.0 mgd), water used for agricultural irrigation (5.0 mgd), and water seeping from the Mine Water Surge Area ("MWSA") (1.2 mgd). The water balance matrix moisture component of 2.9 mgd is not a withdrawal of water for water use permitting purposes. The District's modeling of the impacts resulting from mine cut dewatering resulted in a finding of 2.34 MGD as opposed to the 3.7 mgd derived by CMI. For calculation purposes, rainfall is collected at the rate of 3,974 gallons per acre per day. CMI calculates that it will collect 3.1 mgd of rainfall, and use it in its recirculation system. The 3.1 mgd calculation is based on the amount of rain that will fall on 600 acres of mine water surge area, 80 acres of plant site, and two 50 acre mine cuts. CMI plans to mine 450 acres each year at the Pine Level Site over a period of 22 years. Runoff over disturbed areas on the CMI mine site must be captured, and will become part of the recirculation system. Assuming only one year of disturbed area during the permit term, CMI has failed to account for nearly 1.8 mgd in its water balance (450 acres x 3,974 gallons/acre/day). CMI plans to pump any rainfall collected from all disturbed areas to the mine water surge area (MWSA). CMI has not included any acres of disturbed area in its calculations of the amount of rainfall it will collect for the current permit. CMI has not submitted a mine plan. Without a mine plan, the number of disturbed acres cannot be determined. Because CMI's water balance does not include rainfall collected over disturbed areas, the water balance is incorrect. The rainfall collected from the disturbed areas will increase the amount of water that CMI will need to discharge or use for agricultural purposes. Excavation of the Mine Water Surge Area will cause dewatering of the surficial aquifer. No analysis was done of how much dewatering of the surficial aquifer will occur as a result of the excavation of the MWSA, or of the potential impacts to wetlands as a result of the dewatering activities. The District's one foot draw down presumption applies to dewatering as well as to groundwater pumping. The proposed dewatering setback from wetlands was set at 660 feet. The 660 foot setback distance is in lieu of mitigation if CMI wishes to mine within the setback distance, it will be required to implement mitigation procedures. Dewatering draw downs in the surficial aquifer as great as six and one-half to seven feet could occur on the CMI site at 660 feet from a mine cut under dry weather conditions. At 660 feet, the predicted draw down is nearly one and one-half feet using a mine pit depth of 26 feet, based on a three foot water table and a 29 foot average mine cut depth for the area expected to be mined during the term of the permit. Actual mine cut depths during the term of the permit would be as deep as thirty-seven feet which result in a draw down in the aquifer that is greater than one and on-half feet. Combining the dewatering calculations with the surficial aquifer draw downs resulting from CMI's planned well pumping from the intermediate and Floridian aquifers result in greater than predicted draw downs. CMI's water balance did not account for changes in water needs due to variability of the ore body. WATER QUALITY CMI has not demonstrated that the water quantities requested for the operation of the phosphate mine and beneficiation plant, and land reclamation and water handling will utilize the lowest water quality to the greatest extent practicable. Nevertheless, the Pine Level mine is innovative in comparison to other operating mines. It proposes to reduce its groundwater requirement by increasing the amount of recycled water used in the amine flotation process; employ an innovative sand/clay mixing technique for land reclamation, thus eliminating the need for conventional large, above-ground day settling areas or slime ponds; and use surplus water for irrigation of agricultural crops or pasture. CMI plans to mine the Pine Level Site for a period of 22 years. For phosphate mines, neither DNR, nor SWFWMD analyze impacts with respect to surface water during the mining process. For phosphate mines, no state agency looks at off-site surface water impacts from the standpoint of draw downs, with the possible exception of cities and counties. The District has not required CMI to submit an application for the management and storage of surface waters permit, since the District staff believes that phosphate mines are exempt from obtaining any MSSW permit from the District. A gap exists in the regulatory scheme for phosphate mines with respect to the reduction of surface water flows during the mining process if SWFWMD exempts phosphate mines from obtaining an MSSW permit. INTERFERENCE WITH EXISTING LEGAL USERS The City of North Port is an existing legal user of water. The City of North Port has a public water supply facility which draws its water from the Big Slough. The Big Slough normally gets a portion of its flow from high quality water in the surficial aquifer. CMI's proposed Pine Level phosphate mine is located in the watersheds which feed the Big Slough and the Peace River. In the initial years of the mine, virtually all of the collected rainfall will be diverted from the Big Slough watershed. No analysis has been done to see how dewatering might affect the City of North Port. Any significant reduction in flow to the City of North Port's facility during the low flow season will interfere with North Ports existing legal use of water. Diversion of 3.1 mgd of rainfall from the Big Slough will have an adverse impact on the City of North Port's water facility. The City of North Port is currently under a consent agreement with the Florida Department of Environmental Regulation because the water supplied by its facility violates drinking water quality standards for sulfates and total dissolved solids ("TDS") regularly during periods of low flow in the Big Slough. The MWSA, the plant area and the initial mining areas are primarily within the Big Slough drainage area. Seepage of 1.2 mgd from the MWSA will flow into the Big Slough. The only analysis done of the quality of the seepage from the MWSA was a rough analysis which showed that sulfates will likely be around 550 grams per liter. The legal standard for sulfates in drinking water is 250 grams per liter. Seepage from the MWSA will be high in total dissolved solids ("TDS") since a good portion of it was pumped from deep wells which have very high levels of TDS. No analysis was done of the potential of this seepage water to interfere with North Port's facility. Charlotte County is an existing legal user of water whose water supply is drawn from the Peace River downstream from the proposed CMI phosphate mine at Pine Level. Discharge of 5.0 mgd from the Pine Level mine could adversely affect Charlotte County's drinking water facility located on the Peace River. AGRICULTURAL USE CMI proposes to use 5.0 MGD of surplus water for irrigation of pasture grasses for cattle. CMI has not conducted any specific tests to determine the feasibility of using the discharge or the quality of the water that they plan to use for agricultural irrigation. The water for irrigation will be drawn out of the mine water surge area. The determination of whether the 5.0 mgd discharge can be used for agricultural irrigation has been postponed. The staff's position is that the proposed special conditions provide reasonable assurances that the discharge will comply with the requirements of the Basis for Review. WETLANDS Isolated wetlands occur throughout the CMI mine site. The isolated wetlands on the CMI property provide habitat for endangered and threatened species. Sandhill Cranes and Wood Storks, both threatened or endangered species, were sighted on the CMI property by wetlands experts during their site visit prior to the hearing. Small isolated wetlands on CMI property would be adversely affected by less than a one foot draw down. Wetland peat soils oxidize if exposed to the air. Oxidation results in subsidence of the wetland soils, which adversely impacts wetlands. Too much water as well as too little water can adversely impact wetlands. The combined effects of aquifer pumping and dewatering planned at the CMI site will adversely affect wetlands. No analysis was completed of the impacts to wetlands as a result of the combined effects of dewatering and pumping from the aquifer. No information regarding the normal range of wetland hydroperiods for preserved wetlands or other onsite unmined wetlands was introduced. No information was provided regarding the habitat functions provided by the wetlands on the CMI site either for threatened or endangered species or otherwise. ENVIRONMENTAL IMPACT The Applicant did not provide reasonable assurance that the water use will not cause unacceptable adverse impacts to environmental features on or off- site. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact to surface water bodies such as lakes, ponds, impoundments, springs, streams, canals, estuaries or other water courses. The Applicant did not provide reasonable assurances that there will be no adverse environmental impact to wetlands, lakes, streams, estuaries, fish, and wildlife or other natural resources. The Applicant did not provide reasonable assurances that there will be no adverse impacts to the surface water system or vegetation as a result of groundwater withdrawal. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact by altering or impairing the habitat of threatened or endangered species. The Applicant did not provide reasonable assurances that the projected draw downs will not result in any adverse impact to any protected or non-protected plant or animal species. The Applicant did not provide reasonable assurances that the water use will not have an adverse environmental impact to wetlands.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of Southwest Florida Water Management District enter a Final Order DENYING the issuance of a Water Use Permit to the Applicant, CMI. DONE and ENTERED this 20th day of April, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs - 13, 14, 15, 21, 24, 31, 35, 38, 70, 71, 73, 75, 91, 97, 100, 104, 105, 114, 115, 116, 125, 126, 127, 128, and 129. Rejected as subsumed or irrelevant and immaterial: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 20, 22, 23, 25, 27, 28, 29, 30, 33, 34, 36, 37, 37A, 39 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 72, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,87, 92, 93, 94, 95, 96, 98, 99, 101, 102, 103, 106A, 106, 107, 108, 109, 110, 111, 112, 113, 117, 120, 121, 122, 123, 124, 130, 131, 132, 133, and 134. Rejected as against the greater weight of the evidence: paragraphs - 18, 26, 32, 41, 42, 46 (omitted), 47 (omitted), 69, 88 (omitted), 89 (omitted), 90 (omitted), 118 (omitted), 119 (omitted), and 135 (omitted). Proposed findings of fact submitted by Petitioner, Charlotte County. Accepted in substance: paragraphs - 1, 2, 7, 18, 19, 20, 22, 25, 28, 29, 36, 40, 41, 51, 59, and 62. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 23, 24, 26, 27, 30, 31, 32, 33, 34, 35, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 60, and 61. Rejected as hearsay: paragraphs - 43 and 44. Proposed findings of fact submitted by Petitioner, City of North Port. Accepted in substance: paragraphs - 1, 2, 3, 5, 6, 7, 9, 19, 20, 21, 22, 24(in part), 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 47, 48, 49(in part), 50, 51, 52, 53, 54, 56, 57(in part), 58, 59, 60, 61, 63(in part), 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 83, 84, 85, 86(in part), 87, 92, 93, 95, 96, 99, 104, 107, 108(in part), 109(in part), 112, 113, 114, 115, 116, 120, 122, 123, 126, 138, 139, 140, 141, 142, 143(in part), 144, 150, 153, 154, 155, 156, 159, 167, 168, 170, 171, 172, 173, 176, 177, 179, 180, 187, 193, 194, 195, 197, 198, 199, 200, 201, 202, 204, 205. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 4(contained in Preliminary Statement), 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24(in part), 33, 43, 44, 46, 49(in part), 55, 57(in part), 62, 63(in part), 64, 76, 77, 81, 82, 86(in part), 88, 89, 90, 91, 94, 97, 98, 100, 101, 102, 103, 105, 106, 108(in part), 109 (in part), 110, 111, 117, 118, 119, 121, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 143(in part), 145, 146, 147, 148, 149, 151, 152, 157, 158, 160, 161, 162, 163, 164, 165, 166, 169, 174, 175, 178, 181, 182, 183, 184, 185, 186, 188, 189, 190, 191, 192, 196, 203, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217. Proposed findings of fact submitted by Respondent/Petitioner Consolidated Minerals, Inc. and Southwest Florida Water Management District. Accepted in Substance: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, 20, 21, 22(in part), 23, 24, 25(in part), 26, 27(in part), 28, 29(in part), 32, 33(in part), 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52(in part), 53, 54, 55, 56, 57(in part), 58, 62, 71, 82, 85, 87, 88, 91, 92(in part), 93, 94(in part), 95(in part), 96(in part), 97(in part), 100(in part), 101, 115, 119, 120, 123, 124(in part), 125(in part), 126(in part), 127(in part), 130(in part), 133(in part), 137, 138(in part), 139, 145. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 12, 13, 15, 16, 31, 36, 37, 38, 48, 51, 52(in part), 57(in part), 59, 60, 63, 80, 81, 83, 84, 86, 90, 94(in part), 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 118, 124(in part), 126(in part), 127(in part), 130(in part), 134, 135, 136, 138(in part), 140, 141, 142, 143. Rejected as against the greater weight of evidence: paragrahs - 22(in part), 25(in part), 27(in part), 29(in part), 30, 33(in part), 34, 35, 61, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 89, 92(in part), 95(in part), 96(in part), 97(in part), 98, 99, 100(in part), 102, 103, 121, 122, 125(in part), 128, 129, 131, 132, 133(in part), 144. Proposed findings of fact submitted by Petitoner, Environmental Confederation of Southwest Florida, Inc. Accepted in substance: paragraphs - 1, 2, 3, 4 6, 7, 17, 22, 26, 27, 28, 29, 30, 33(in part), 34, 35, 39(in part) 41, 42, 43, 45, 48, 53, 56, 57, 59, 60, 61, 62, 71, 73, 80, 81, 82, 85, 86, 87, 92(in part), 106, 107, 110, 112, 113, 114, 115, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139(in part), 140, 141, 142, 143, 144, 145, 148, 149, 150, 151, 152, 154, 155, 157, 158, 162, 163, 164, 165. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 31, 32 33(in part), 36, 37, 38, 39(in part), 46, 47, 49, 50, 51, 52, 55, 58, 63, 64, 65, 66, 67, 68, 70, 72, 74, 75, 76, 77, 78, 79, 83, 84, 88, 89, 90, 91, 92(in part), 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 109, 111, 118, 119, 120, 146, 147, 153, 156, 159, 160, 161, 166, 167, 168. Rejected as against the greater weight of evidence: paragraphs - 44, 54, 69, 139(in part). COPIES FURNISHED: Rory C. Ryan, Esquire Roger W. Sims, Esquire HOLLAND & KNIGHT Suite 2600 200 S. Orange Avenue P. O. Box 1526 Orlando, Florida 32802 Vivian Arenas, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad St. Brooksville, Florida 34609 Mr. Alan R. Behrens Route 2, Box 725-A-32 Arcadia, Florida 33821 Matthew G. Minter, Esquire County Attorney 18500 Murdock Cr. Port Charlotte, Florida 33948-1094 David M. Levin, Esquire ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG PO Box 4195 Sarasota, Florida 34237 Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund PO Box 1329 Tallahassee, Florida 32302 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Petitioner should be granted the relief requested in his petition challenging the Department of Environmental Protection's Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a collector and wholesaler of various "saltwater products," as defined in Chapter 370, Florida Statutes.1 He possess a saltwater products license (issued pursuant to the provisions of Chapter 370, Florida Statutes, and Chapter 46-42, Florida Administrative Code), with a restricted species and marine life endorsement, which allows him to engage in these activities. Petitioner collects and sells, among other things, what is referred to as "live sand," a calcium carbonate sediment used in public and home aquaria as a decorative detoxifying agent. "Live sand" is found on offshore water bottoms in the Florida Keys (where Petitioner engages in his collection activities) and other areas in Florida. "Live sand" consists primarily of the calcified (dead) remains of Halimeda plants. Halimeda plants (generally on a seasonal basis) produce plates, which they ultimately shed. These plates, through various physical and biological processes, are broken down over time into smaller and smaller granules. Halimeda plants are very productive (in terms of the number of plates they produce), but they are found only in certain (not all) offshore areas in the Florida Keys. While the granules that make up the "live sand" Petitioner collects and sells consist of dead plant matter, thousands of micro and macroorganisms (in a cubic foot area), representing numerous species, live amongst these granules and therefore are also removed from the water as a result of Petitioner's collection activities. The microorganisms living in "live sand" include nitrosomous bacteria. The presence of nitrosomous bacteria enables "live sand" to neutralize the ammonia waste products of fish in public and home aquaria. Among the macroorganisms living in "live sand" are mollusks, worms, arthropods, and echinoderms. These organisms are an important part of the diet of other species, including protected species such as the spiny lobster (Panulirus argus), which itself is part of the food supply for fish in the area. Petitioner collects "live sand" by diving underwater and using his hands to scoop up and place in buckets the top layers of the bottom ("live sand") substrate. Such collection activities have negative environmental consequences that are not insignificant. They adversely impact water quality in the waters in which they occur and in adjacent waters inasmuch as they increase turbidity and reduce biological diversity. Excavation of the top layer of bottom substrate exposes the siltier sediment below, which, when disturbed, reduces water clarity and therefore also the amount of sunlight that penetrates the water. Furthermore, this newly exposed substrate, because of its anaerobic nature, is unable to attract a significant benthic community comparable to that found in the "live sand" that previously covered it. In addition, because these collection activities result in the removal of organisms that are important components of the aquatic food chain and in loss of their habitats, these activities have an adverse effect on marine productivity and, resultantly, on fishing and recreational values. The "live sand" that is the subject of the instant controversy is located in Monroe County within the boundaries of the Florida Keys National Marine Sanctuary in state waters designated Class III, Outstanding Florida Waters (OFW).2 Petitioner first contacted the Department in writing regarding the removal of this "live sand" in May of 1997, when he sent the Department a letter which read, in pertinent part, as follows: REF: Collection of Sand for Use in Aquari[a] Pursuant to our recent telephone conversation, I respectfully request that I receive a letter of de minimis for the aforementioned activity. The sand is collected by hand using five gallon buckets. The collection occurs under water [at] a depth of approximately 20 feet. The sand occurs in an area devoid of marine grasses, plants and corals. No sand is taken from or near shorelines and no sedimentary resultant is produced. I intend to collect four five gallon buckets each of which contains 50 pounds of sand. This collection is to occur once a month. . . . By letter dated June 2, 1997, the Department acknowledged receipt of Petitioner's letter and requested that he provide "additional information" to enable the Department to determine whether it should grant him "an exemption from the need for an Environmental Resource Permit pursuant to Part IV, Chapter 373, Florida Statutes (F.S.), and an authorization to use state- owned submerged lands, pursuant to Chapters 253 and 258, F.S., to collect sand, by hand, from underwater." On August 28, 1997, Petitioner supplied the Department with an "addendum to [his] original request for consideration" in which he specified the location of his "proposed collection" of "live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40. The Department deemed Petitioner's "addendum" insufficient to render his paperwork "complete." By letter dated September 23, 1997, the Department so advised Petitioner. Along with letter, the Department provided Petitioner with the following "revised request for additional information identifying the remaining items necessary to complete [his] application": Part I REVISED COMPLETENESS SUMMARY FOR SAND COLLECTION The proposed project will require an Environmental Resource Permit. The correct processing fee for this project is $500.00. Provide a $500 processing fee payable to the Department of Environmental Protection. In your letter received May 6, 1997, requesting a De Minimis exemption you state you intend to collect four (4), five (5) gallon buckets of sand each of which contains fifty (50) pounds of sand per month. A letter you submitted to the Department from the Army Corps of Engineers (dated May 9, 1997) states you will collect four (4) or five (5), five (5) gallon buckets three (3) times per month. Please indicate the quantity of sand you propose[] to collect per month. Part II CONSENT OF USE (Chapters 18-18, 18-20 and 18-21, Florida Administrative Code) For your information If the project develops to the point where proposed dredging will be recommended for authorization, payment for the removal of sovereign submerged land will be required at $3.25 per cubic yard, or a minimum payment of $50.00 prior to issuance of the authorization. Do not provide payment until requested by Department staff. [See 18- 21.011(3)(a), F.A.C.] Petitioner timely responded to the Department's "revised request for additional information" by letter dated October 10, 1997, to which he attached the requested "processing fee." In his letter, Petitioner advised the Department that it was his "intent to collect approximately 600 (six hundred) pounds of material each month." Following its receipt of Petitioner's letter and accompanying "processing fee," the Department sent letters to potentially affected parties advising them of Petitioner's "proposed [sand collection] activit[ies]" and soliciting their comments concerning these activities. The Florida Department of Community Affairs responded to the Department's request by indicating, in written correspondence it sent to the Department, that it had "no objection to the proposed project." The National Oceanic and Atmospheric Administration (NOAA) also provided written comments to the Department. It did so by letter dated November 21, 1997, which read as follows: The following are comments from the Florida Keys National Marine Sanctuary (FKNMS) concerning the application from Jeff Frankel to collect live sand, File No 44-0128760-001. These comments reflect the consensus of both NOAA and FDEP Sanctuary staff. The harvest of live sand is viewed by the Sanctuary as dredging. This activity is considered neither fishing nor traditional fishing activity. Therefore, "harvesting of live sand" is within the prohibition against dredging, or otherwise altering the seabed of the Sanctuary and does not fall within the exception for "traditional fishing activities" as Mr. Frankel asserts. As such this activity should not be conducted in the Sanctuary without a Federal or State permit. The Sanctuary is opposed to permitting this activity in Federal or State waters for the following reasons: As stated above, it is a dredging activity which is prohibited.3 The Sanctuary exists because of the unique and nationally significant resources found here. These resources exist due to the dynamic ecosystem of which sand, and the meiofaunal communities found therein, is a major component. The Sanctuary is opposed to unnecessary alteration of the ecosystem particularly when viable alternatives exist such as harvesting outside the FKNMS in Gulf waters and aquaculture. Sixty-five percent of the Sanctuary seabottom is State sovereign lands. Removal of the quantities of substrate for commercial purposes does not appear to be in the public interest. Pursuant to the intragency compact agreement between the State of Florida and the National Oceanic and Atmospheric Administration dated May 19, 1997, NOAA will not permit a prohibited activity in federal waters in the Sanctuary that is not allowed in the State waters of the Sanctuary. We appreciate the opportunity to comment on this application. On January 8, 1998, the Department issued its Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands. In its Consolidated Notice, the Department gave the following reasons for its action: The Department hereby denies the permit for the following reason: The proposed project will directly impact water quality by removal of approximately 660 pounds of "live sand" from state-owned sovereign submerged land each month. The material collected consists of dead calcareous green algae (Halimeda spp.) and calcium carbonate grains. This substrate is important habitat for grazers and detritivores and it contains an extensive and diverse invertebrate community. . . . The project as proposed does not comply with the specific criteria within; Chapter 373, F.S., F.A.C. Rule 62-300, and Section 4.2 of the Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District. The above impacts are expected to adversely affect marine productivity, fisheries, wildlife habitat, and water quality. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the violation of water quality standards pursuant to F.A.C. Rule 62-312.150(3) and 62-312.070. Specific State Water Quality Standards in F.A.C. Rules 62-302.500, 62-302.510, 62- 302.560 and 62-4.242 that will be affected by the completion of the project include the following: Biological Integrity- . . . . This project will also result in the following matter which are not clearly in the public interest pursuant to Section 373.414(1)(a), F.S.: adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; diminish the current condition and relative value of functions being performed by areas affected by the proposed activity; adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; the activity will be permanent in nature; adversely affect the functions and relative value of the habitat within the area of the proposed project. Therefore, the Applicant has not provided reasonable assurance that the project is clearly in the public interest pursuant to Section 373.414(1)(a), F.S. The request for authorization to use sovereign submerged lands is denied because the Applicant has not met all applicable requirements for proprietary authorizations to use sovereign submerged lands, pursuant to Article X, Section 11 of the Florida Constitution, Chapter 253 F,S., associated Chapter 18-21, F.A.C., and the policies of the Board of Trustees. Specifically, operation of the activity is inconsistent with management policies, standards and criteria of F.A.C. Rule 18- 21.00401(2) and 18-21.004. The Applicant has not provided reasonable assurance that the activity will be clearly "in the public interest," will maintain essentially natural conditions, will not cause adverse impacts to fish and wildlife resources or public recreation or navigation, and will not interfere with the riparian rights of adjacent property owners. In addition, the project is inconsistent with the goals and objectives of the "Conceptual State Lands Management Plan," adopted by the Board of Trustees on March 17, 1981. The . . . activity is inconsistent with Section 18-21.00401(2), F.A.C., the authorization to use sovereign submerged lands cannot be approved, in accordance with Sections 18-21.00401 and 62-343.075, F.A.C., because the activity does not meet the conditions for issuance of a standard general of individual permit under Part IV of Chapter 373, F.S., as described above. The Consolidated Notice accurately describes the adverse impacts of the "project" which is subject of the instant case (Project). Petitioner has not proposed any measures to mitigate these adverse impacts. If the Department authorizes the Project, it is reasonable to anticipate that other collectors of "live sand" would seek the Department's approval to engage in similar activity in the area. If these other projects were also approved, there would be additional adverse environmental consequences. As the Consolidated Notice alleges, Petitioner has failed to provide reasonable assurance that the Project would not degrade the ambient water quality of the OFW in which the Project would be undertaken, nor has he provided reasonable assurance that the Project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands. DONE AND ENTERED this 12th day of January, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 12th day of January, 1999.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue The issue is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
The Issue The issue is whether Florida Administrative Code Rules 40E-0.109(1)(a), 40E-1.511(1)(b), and 40E-1.5095 are invalid exercises of delegated legislative authority, pursuant to Section 120.52(8)(b) and (c), Florida Statutes.
Findings Of Fact On March 8, 2003, Respondent published in The Stuart/Port St. Lucie News, a daily newspaper published in Martin County, the following notice (Published Notice): The South Florida Water Management District (SFWMD) Governing Board will consider, for approval, a Water Use Permit Renewal/Modification (Application 971224-8, Permit 40-00089-W) for the Martin County Utilities (Martin County Consolidated System), PO Box 9000, Stuart, FL 34995 at its March 13 2003 Governing Board Meeting. The Applicant has requested an annual allocation of 4,529 MG (17.41 MG on a maximum daily basis) with a permit duration of 5 years, for a Public Water Supply to service approximately 17,000 acres located in Martin County. The water will be withdrawn from the Surficial Aquifer System. A copy of the proposed agency action, a description of the project, and a staff analysis of the project, are available for inspection at the South Florida Water Management District, Environment Resource Regulation Department, 3301 Gun Club Road, West Palm Beach, FL 33406, or a copy may be obtained by contacting Ralph Peno at 561- 582-9605. Interested persons may comment upon the proposed agency action and are entitled to request an Administrative Hearing regarding the proposed agency action by writing the Governing Board of the South Florida Water Management District, PO Box 24680, West Palm Beach, FL 3316, but which comments or requests must be received within 21 days from the date of this publication. Publish March 8, 2002 (The only copy of the Published Notice is a facsimile copy that is illegible in certain places. Typographical errors therefore may appear in the version set forth above, but none of the possible discrepancies would affect the outcome of this case.) Petitioner and his wife own a single-family residence at 2039 Ginger Terrace, Jensen Beach, Florida. Petitioner lives in close proximity to certain lands that he claims have been adversely affected by overpumping of Martin County's wellfields. Petitioner enjoys various recreational activities on these lands. Unaware of the Published Notice on March 8, 2003, Petitioner filed his petition challenging the proposed permit to Martin County on September 25, 2003. This date was within 21 days of when Petitioner received actual notice of the proposed agency action and 21 days of the decision of Respondent's Governing Board to approve Martin County's application for a water use permit. The Governing Board did not approve and may not have considered the proposed agency action on March 13, 2003, as indicated in the Published Notice. The delay between the date on which the Published Notice announced that the Governing Board would take action on Martin County's application and the date on which the Governing Board took action was due to the time consumed by successful efforts of the Governing Board and Martin County to resolve a dispute that another party had raised with respect to the proposed permit. With the challenged provisions underlined, Florida Administrative Code Rule 40E-0.109 provides: 40E-0.109 Point of Entry Into Proceedingsand Mediation. Point of entry into proceedings determining substantial interests are governed by Rule 28-106.111, F.A.C., and this section. (1)(a) “Receipt of written notice of agency decision” as set forth in Rule 28-106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action. (b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received. If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed. Notwithstanding Rule 28-106.111, F.A.C., intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands pursuant to Section 373.427, F.S., shall provide a 14 day point of entry to file petitions for administrative hearing under Rule 28-106.111, F.A.C. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 120.569, 120.57, 120.60, 373.146, 373.413, 373.427 FS. History–New 7-2-98, Amended 6-12-00 Challenged in its entirety, Florida Administrative Code Rule 40E-1.5095 provides: 40E-1.5095 Publication of Notice of Agency Decision or Intended Agency Decision. In cases where a project is determined to be of heightened public concern, or where there is the likelihood of a request for an administrative hearing, where the proposed activity is potentially harmful to the water resources of the District or contrary to the overall objectives of Chapter 373, F.S., as outlined in Section 373.016, F.S., or if objection(s) to the application has been received, the District shall publish, or require the permit applicant to publish notice of agency decision or intended agency decision in the Florida Administrative Weekly or newspapers of general circulation in the area affected by such decisions as required by Chapter 50, F.S., and shall post notice and mail copies of its notice to applicants and interested groups. Such publication may be used as evidence of constructive and sufficient notice. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 120.569, 120.57, 373.146, 373.413 FS. History–New 7-2-98, Amended 6-12-00. With the challenged provisions underlined, Florida Administrative Code Rule 40E-1.511 provides: 40E-1.511 Point of Entry Into Proceedings. Procedures regarding point of entry into proceedings determining substantial interests and mediation are set forth in the Uniform Rules of Procedure Rule 28-106.111, F.A.C. The following exceptions are applied in combination with the applicable Uniform Rules of Procedure. (1)(a) “Receipt of written notice of agency decision” as set forth in Rule 28-106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action. (b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received. If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Rule 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed. Notwithstanding the timeline in Rule 28-106.111, F.A.C., intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands pursuant to Section 373.427, F.S., shall provide a 14 day point of entry to file petitions for administrative hearing. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54. On March 13, 1998, Respondent published in Florida Administrative Weekly, Volume 24, Number 11, a copy of its petition to the Administration Commission for, among other things, an exception from the Uniform Rules of Procedure adopted by the Administration Commission. The petition states, in relevant part: The SFWMD seeks an exception from Rule 28-106.111(2), F.A.C., regarding notices of agency decision. This exception is sought to clarify that "written notice of agency decision," as used in Rule 28-106.111, includes the publication of notice and posting of notice, as well as actual written notice by mail. Chapter 373, F.S., provides the authority to require publication of notice in addition to actual or mailed written notice of an agency decision or intended agency decision. . . . Publication is required if desired by the applicant, or if the proposed project is potentially harmful to the water resources, of heightened public concern or contrary to the overall objectives of Chapter 373, F.S. Rule 28-106.111, F.A.C., provides for a petition requesting an administrative hearing to be filed within 21 days of receipt of "written notice" of an agency's decision. The phrase "written notice" is not defined in Rule 28-106.111, F.A.C. or elsewhere in the Uniform Rules, however, it could be narrowly interpreted as only allowing notice by mail or similar actual notice. Publication is an accepted legal procedure providing a clear point of entry for filing a petition. It has been recognized as a viable noticing procedure in administrative law forums. See, e.g., City of LaBelle v. Bio-Med Services, Inc., et al, 598 So. 2d 207 (Fla. 2d DCA 1991). Based on the above, this exception is necessary both to implement the authority under Chapter 373, F.S., and for the efficient operation of the SFWMD. By Final Order entered March 25, 1998, the Administration Commission granted Respondent an exception from Florida Administrative Code Chapter 28-106 for proposed Rule 40E-0.511, "on the basis of implementation of statute and the most efficient operation of the agency." During subsequent rulemaking, "Rule 40E-0.511" became the three rules that, in whole or in part, Petitioner is challenging in this case (Rules). By Order of Non-Compliance with Requisite Rules and Dismissing Petition with Leave to Amend dated October 29, 2003, Respondent found Petitioner had not timely filed his initial petition because it was not filed within 21 days of the publication of the Published Notice. The Order dismissed the petition with leave to file an amended petition within 21 days. Petitioner filed his First Amended Request for Administrative Hearing on November 17, 2003. Reserving all rights concerning the timeliness of the petition, Respondent, by Order dated January 7, 2004, transmitted the petition to the Division of Administrative Hearings, which designated the case as DOAH Case No. 04-0104. Pursuant to the procedures discussed during the March 22, 2004, telephone conference, Respondent and Martin County have requested a summary disposition of DOAH Case No. 04-0104, which would be granted if the Administrative Law Judge dismisses the challenge to the Rules and sustains the sufficiency of the Published Notice.
