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PANAGIOTI TSOLKAS, ALFRED LARK, AND CHRISTIAN MINAYA vs THE DAVID MINKIN FLORIDA REALTY TRUST, RICHARD THALL, ROBERT THALL, PETER L. BRIGER, PAUL H. BRIGER, THE LESTER FAMILY INVESTMENTS, LP, PALM BEACH COUNTY, AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 10-003100 (2010)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jun. 04, 2010 Number: 10-003100 Latest Update: Jan. 06, 2011

The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).

Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, 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 30th day of November, 2010.

Florida Laws (5) 120.5730.51373.41457.1057.50
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ROBERT C. ERNEST vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 85-004243 (1985)
Division of Administrative Hearings, Florida Number: 85-004243 Latest Update: Apr. 16, 1986

Findings Of Fact The Florida Department of Transportation (DOT) is currently engaged in widening State Road (SR) 5, the Overseas Highway, to four lanes on Marathon Key. To handle surface water runoff from a portion of the project, DOT received approval from the South Florida Water Management District for a surface water management system which included two retention ponds (west pond and east pond) to be located on Marathon Airport.1 On May 23, 1985, DOT filed an application with DER for authorization to construct four Class V, group five stormwater drainage wells within the retention ponds on Marathon Airport. DOT proposed to locate three wells within the west pond and one well within the east pond to comply with a Federal Aviation Administration (FAA) request that water levels be minimized to deter the attraction of birds which could present a hazard to aircraft navigation. By letter dated August 12, 1985, DER forwarded to DOT permit number US44-104852, dated July 26, 1985, for construction of the subject wells. Upon its receipt of the permit, DOT let the contracts for the widening of SR 5; however, neither DER nor DOT published notice of DER's intent to issue the requested permit. On November 29, 1985, a few days after he received actual notice that the permit had been issued, Robert C. Ernst filed a request for hearing with DER contesting its issuance. Mr. Ernst owns a home which lies atop the groundwaters to be impacted by the subject permit and which abuts Dodge Lake, a Class III surface water body; Mr. Ernst uses the waters of Dodge Lake for swimming, fishing, and other recreational pursuits. On December 20, 1985, Mr. Ernst and others, on behalf of Neighbors for Clean Canals (NCC), filed a request for hearing challenging the same permit. NCC was alleged to be a neighborhood association, formed December 17, 1985, to represent the interests of property owners affected by the proposed project; however, no such proof was offered at hearing. The retention ponds proposed by DOT are designed to accommodate the first inch of stormwater runoff.2 Significantly, the first 1/2" of runoff from a highway system contains the bulk of pollutants. By retaining this runoff, and permitting it to evaporate or percolate through the soils underlying the retention ponds, any adverse impact to the ground waters is minimized. DOT's proposal to install four injection wells within the ponds will deprive them of their retention capability. These wells will, within a 12-20 hour period, inject the first 1/2" of runoff (over 1 million gallons) directly into the groundwaters. Therefore, evidence of the nature of the pollutants, the quality of the receiving waters, and the geologic and hydrologic qualities of the area are significant. Highway runoff contains high concentrations of pollutants ranging from toxic mutagenic and carcinogenic substances such as heavy metals (primarily lead and zinc), pesticides, and herbicides to oxygen consuming materials and solids which cause damages such as siltation and eutrophication. These pollutants, including oils, greases, and copper, can have significant adverse effects upon the quality of the receiving waters and the life forms it supports. Underlying the proposed retention ponds is an aquaclude which extends from the surface to a depth of 30-40 feet. This aquaclude, a hard layer formation with very poor percolation qualities, will preclude any waters injected below it from returning to the surface and will direct their flow laterally. Since the maximum depths of Dodge Lake and the 100th Street Canal are 13' and 21' respectively, injection of the stormwater runoff at 50', well below the existing aquaclude, provides reasonable assurances that these water bodies will not be adversely impacted by the proposed project. However, the impacts to the groundwater and other water bodies is not so clear. Other than sampling the groundwater to establish its character as Class III groundwater,3 DOT and DER did not perform any water quality analysis. Accordingly, the existing quality of the receiving groundwaters was not shown. Further, there was no showing of the hydrologic characteristics of the area. Therefore, there was no evidence of the mixing or dilution of the contaminants which would be injected, or of their ultimate point(s) of discharge into the surface waters surrounding Marathon Key.4 DOT and DER assert that "specific conditions" #4 and #5 attached to the subject permit will provide assurances that injection of the stormwater runoff will not cause or contribute to a violation of water quality standards. Those conditions provide: The following parameters shall be sampled at Well W-2 Florida Department of Transportation drawing sheet 3 of 5 and Well E-1 Florida Department of Transportation drawing sheet 4 of 5 and reported quarterly to the Department ninety (90) days following certification and placement of this facility in operation. The parameters to be sampled are: Napthalene, Lead and volatile organic compounds including: Trichloroethylene, Tetrachloroethylene, Carbon Tetrachloride, Vinyl Chloride, 1,1,1,-Trichloroethane, 1,2- Dichloroethane, Benzene, and Ethylene Dibromide. The discharge authorized by this permit shall be consistent at all times with the water quality standards set forth in Chapter 17-3, Florida Administrative Code. Should conditions in the receiving stream warrant, the Permittee may be required by the Department to upgrade, reduce, or cease the discharge approved by this permit and adopt an alternative method of disposal within a reasonable period of time. Under specific condition #4, the ground waters will be sampled at one injection well within each of the retention ponds. Without evidence of the mixing and flow characteristics of the groundwater, the reliability of the proposed monitoring program is questionable since it was not shown where, transitionally or ultimately, the pollutants would settle. Absent such proof, there is no evidence that the wells are sited so as to detect any water quality violations. Therefore, specific conditions #4 and #5 do not provide reasonable assurances that the proposed project will not cause or contribute to a violation of water quality standards.

Conclusions The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Petitioners, Robert C. Ernst and Neighbors for Clean Canals (NCC), pursuant to Section 120.57, Florida Statutes, contest the decision of DER to issue a permit to DOT to construct four Class v, group five-stormwater drainage wells. Pertinent to this proceeding, Section 120.57 provides: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency. When standing is resisted, as it is in this proceeding, the burden is on the protestant to prove standing. State, Department of Health and Rehabilitative Services, v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979). Chapter 120, Florida Statutes, does not attempt to define substantially affected persons. The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So. 2d 1014 (Fla. 1st DCA) 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in- fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type or nature which the proceeding is designed to protect (the "zone of interest"). Where, as here, an association institutes a proceeding on behalf of its members, it can be accorded standing only when it demonstrates that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed agency action, the nature of the injury is of a type which the proceeding is designed to protect: and, the relief requested is of a type appropriate for an association to receive on behalf of its members. See Florida Home Builders Assoc. v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982). Mr. Ernst has demonstrated his standing to maintain this action. His home lies atop the groundwaters to be impacted by the proposed project and he uses the waters proximate to the proposed wells which could be adversely impacted if the wells were not properly constructed or sited. NCC failed, however, to demonstrate its standing since it failed to offer any evidence that a substantial number of its members could be substantially affected by the proposed project or that the interest sought to be protected was within the association's general scope of interest and purpose. Although Mr. Ernst has demonstrated standing, DOT asserts that his petition was untimely since it was filed more than three months after DOT received its permit. DOT's assertion is without merit. It is established law that persons whose substantial interests may be affected by proposed agency action must be accorded a point of entry into the proceedings. See Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978). Until accorded notice, actual or constructive, such person has not been offered a point of entry. Rule 17-103.150, F.A.C., provides a method to assure constructive notice is given to all substantially affected persons, and to limit the time within which a request for an administrative hearing may be filed. That rule provides that each person who filed an application for a DER permit may publish a notice of proposed agency action in a newspaper of general circulation in the county in which the activity will be located. If notice is published, a person whose substantial interests might be affected by the proposed action must file his request for hearing within 14 days of the date of publication. Significantly, the rule also provides: Since persons whose substantial interests are affected by a Department decision on a permit application may petition for an administrative proceeding within fourteen (14) days after receipt of notice and since, unless notice is given or published as prescribed in this rule, receipt of notice can occur at any time, the applicant or persons benefiting from the Department's action cannot justifiably rely on the finality of the Department's decision without the notice having been duly given or published. DOT elected not to publish notice under the provisions of Rule 17-103.150, F.A.C., and cannot justifiably rely on the finality of DER's decision. Mr. Ernst's petition for hearing, filed within a few days of his receipt of notice, was timely. 5 DER has jurisdiction over the permitting of the proposed four Class V, group five-stormwater drainage wells pursuant to Section 403.087, Florida Statutes, and Chapters 17-4 and 17-28, F.A.C. A party seeking approval to inject stormwater drainage into Class G-III water must provide reasonable assurances that the project will not violate water quality standards set forth in Rule 17-3.402(1), F.A.C. That rule provides: All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non- thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal): Are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by Department permits or Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 17-3.404: or Are acutely toxic to indigenous species of significance to the aquatic community within surface waters affected by the ground water at the point of contact with surface waters or Pose a serious danger to the public health, safety, or welfare; or Create or constitute a nuisance or Impair the reasonable and beneficial use of adjacent waters. DOT has failed to provide reasonable assurances that the proposed stormwater discharge will not cause or contribute to a violation of the groundwater standards set forth in Rule 17-3.402(1), Florida Administrative Code. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order: Dismissing the petition for hearing filed by Neighbors for Clean Canals, and Denying the issuance of permit number US44-104852 to the Department of Transportation. DONE AND ENTERED this 16th day of April, 1986, at Tallahassee, Florida. WILLIAM J. KENDRICK 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 16th day of April, 1986.

Florida Laws (3) 120.57120.60403.087
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JOHN HIGGINS, MAUREEN HIGGINS, LOUIS MITCHELL, BETTY MITCHELL, WILLIAM SPENCE, JUNE SPENCE, ROBERT WERNER, AND LEE WERNER vs MISTY CREEK COUNTRY CLUB, INC., AND SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, 95-002196 (1995)
Division of Administrative Hearings, Florida Filed:Sarasota, Florida May 05, 1995 Number: 95-002196 Latest Update: Dec. 05, 1995

The Issue The issue in this case is whether the Southwest Florida Water Management District (the District) should grant the application of the Misty Creek Country Club, Inc. (the Club), to modify MSSW Permit No. 400037.

Findings Of Fact Background Petitioners are owners of property adjacent to Lake No. 7 of the Misty Creek Country Club in a development called The Preserves at Misty Creek-- specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A (Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots 119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen Higgins), and lot 121 (William and June Spence). Respondent, the Misty Creek Country Club (the Club), operates a golf course and country club located at The Preserves at Misty Creek under a 99-year lease with Gator Creek Lands, the developer of The Preserves at Misty Creek. Existing System Design and Application for Permit Modification In 1985, Respondent Southwest Florida Water Management District, issued a surface water management permit for development of a 730-acre residential development and golf course. The District subsequently issued to the Club operation phase authorization for the surface water management system associated with the golf course portion of the development in March of 1992. Under the original permit, Lake No. 7 was part of the overall stormwater management system for the golf course. The lake is approximately seven and half to eight acres in size and is part of a total drainage basin of approximately twenty-eight acres. As originally designed, Lake No. 7 is a detention with filtration system. An underdrain in the side of the bank provides water quality treatment, filtering out oils and greases, fertilizers and other contaminants. A control elevation of 31.02 was established for Lake No. 7 through construction of a weir. Between elevation 31.00 and 31.02, water discharges through the underdrain system providing water quality treatment. Above elevation 31.02, water flows over the control structure into Lake No. 6, and ultimately discharges to Cow Pen Slough, which is Class III waters of the state. The Club presently has a water use permit from the District which allows withdrawal of groundwater for irrigation of the golf course. Groundwater is stored in Lake No. 7 prior to use for irrigation when needed to augment water in the lake. Special Condition Number 2 of the water use permit required the Club to investigate the feasibility of using reclaimed or reuse water in lieu of groundwater for irrigation purposes at the golf course. As a result of the investigation required by Special Condition Number 2 of the water use permit, the Club filed an application with the District to modify its surface water management permit to allow for the introduction of reuse water into Lake No. 7. Under that application, there would have been no significant modifications to the stormwater management system. Reuse water would have replaced groundwater as a source for augmenting water in the lake when needed for irrigation. An eight-inch service line would convey the reuse water to Lake 7, and a float valve would control the introduction of reuse water into Lake No. 7. When water levels in the lake fell below elevation 30.5', the float valve would open the effluent line to allow introduction of reuse water into the lake; when the water elevation in the lake reached 31.0', the float valve would shut off the flow of water. There would be gate valves on either side of the structure that could be manually closed, if necessary, to stop the flow of reuse water into the lake if the float valve malfunctioned. Club personnel would have access to the gate valves and could manually stop the flow of reuse water into the lake if necessary. On August 9, 1995, just days prior to the final hearing in this matter, the Club proposed to modify its application to make certain structural changes in the design of the surface water management system. Specifically, the Club proposed to plug the window in the weir, raise the elevation of the weir or control structure to elevation 33.6, raise the elevation of the berm along the north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the underdrain. The purpose of the proposed modifications to the design of the system was to assure that no discharge from Lake No. 7 would occur up to and including the 100-year storm event. A 100-year storm event is equal to 10 inches of rainfall in a 24-hour period. Source and Quality of Reuse Water The Club also entered into an agreement with Sarasota County to accept reuse water from the county's new Bee Ridge wastewater treatment facility. That agreement specifies the terms under which the Club will accept reuse water from the County. The County's Bee Ridge facility is presently under construction and is not yet operating. As permitted by the Department of Environmental Protection, the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment system which is a licensed process to provide advanced waste treatment. The construction permit establishes effluent limits for the facility that are comparable to a level of treatment known as advanced secondary treatment, but the County Commission for Sarasota County has instructed the County staff to operate the Bee Ridge facility as an advanced waste treatment plant. Advanced waste treatment is defined by the quality of the effluent produced. For advanced waste treatment, the effluent may not exceed 5 milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids (TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total phosphorus. It also requires high level disinfection. Advanced secondary treatment requires the same level of treatment for TSS but the limit for nitrates is 10 milligrams/Liter. High level disinfection is also required for advanced secondary treatment. In Florida, reuse systems require a minimum of advanced secondary treatment. High level disinfection is the level of treatment that generally is accepted as being a reasonable level of treatment. The Bee Ridge permit issued to Sarasota County identifies the Club as one of the recipients of reuse water for irrigation. Condition Number 21 of that permit provides that the use of golf course ponds to store reuse water is not authorized under the County's permit until issuance of a separate permit or modification of the County's permit. Although the District did not require Misty Creek to submit any information about the modification of the County's permit, there was no basis for assuming that the County permit could not be modified. To the contrary, the permit provides that authorization may be obtained by permit modification. Under the late modification to the Club's application, the reuse water transmission line and float valve system, with backup manual gate valve system, is unchanged. So are the water elevations at which the float valve system will automatically introduce reuse water into Lake 7 and shut off. Sarasota County already has constructed the water transmission system that would deliver reuse water to the Club. At the request of the District, the Club provided copies of the drawings of the float valve structure as permitted by the Department of Environmental Protection. The District did not require certified drawings of that structure. But the District will require the Club to provide as-built drawings following completion of construction prior to the introduction of reuse water into Lake No. 7. Property Ownership Each of the Petitioners owns a residential lot adjacent to Lake No. 7. At the time of the Petitioners' purchase of the individual residential lots, the Club leased certain property immediately west of Lake No. 7 from the developer of The Preserve at Misty Creek. The leased premises included a piece of land extending into the lake known as the 19th green. As a result of negotiations between the Club and the developer, it was determined that the 19th green would be removed and the land between the approximate top of bank of Lake No. 7 and the private residential lots would be released from the Club's lease. The developer subsequently conveyed the property that had been released from the Club's lease to the individual lot owners (the "A" parcels listed in Finding 1). At the time of the conveyance of the additional parcels, the attorney for the developer prepared deeds for each individual parcel with a metes and bounds description off the rear of the residential lots to which they were being added. While the Club's application for modification of its surface water management permit was being processed by the District, counsel for Petitioners provided the District with copies of the individual deeds and questioned whether the Club had ownership or control of the land which was the subject of the application sufficient to meet the District's permitting requirements. In response to a request for information regarding the ownership of the property that was the subject of the application, the Club submitted to the District a topographical survey prepared by Mr. Steven Burkholder, a registered professional land surveyor with AM Engineering. The topographical survey depicted: the elevation of the water in the Lake No. 7 on the day that the survey was conducted, labeled "approximate water's edge"; the elevation of the "top of bank"; and the easternmost line of private ownership by Petitioners. Mr. Burkholder determined the line of private property ownership by reproducing a boundary survey attached to the individual deeds conveying the additional parcels to the Petitioners. He testified that he was confident that the topographical survey he prepared accurately represented the most easterly boundary of the Petitioners' ownership. The elevation of the line of private ownership as depicted on the survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to 35.2. The elevation of the line labeled "top of bank" ranges from a high of 35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be controlled by the elevation of the modified control structure which is proposed to be set at elevation 33.6. After modification of the surface water management system to retain the 100-year storm event, at no time would water levels in the lake rise above the existing elevation of the "top of bank." The Petitioners testified that they believed that they owned to the water's edge or edge of the lake, but Mr. Burkholder testified that a property boundary could not be determined based on an elevation depicting the water's edge because that line would change as the level of the water rose and fell. The Petitioners also presented evidence that the developer's attorney made representations to them that their ownership extended to the "approximate high water line." But there appears to be no such thing as an "approximate high water line" in surveying terms. Where the boundary of a lake is depicted on a survey it generally is depicted from top of bank to top of bank. In any event, the legal descriptions of the parcels conveyed to the Petitioners were not based on a reference to either a water line or the water's edge or the lake at all. Instead, the legal descriptions were based solely on a metes and bounds description off the rear of the residential lots. Notwithstanding some contrary evidence, if the Petitioners owned to the water's edge, such ownership would require the Petitioners to consent to or join in the amended application for the modification of the Club's surface water management permit. Information regarding the ownership or control and the legal availability of the receiving water system is required as part of the contents of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code. The amended application requires the ability to "spread" Lake 7 in the direction of the Petitioners' property. If the Petitioners own the property on which the Club intends to "spread" Lake 7 in order to make the amended application work, the Petitioners must consent or join. The issue of the legal ownership and control of the Petitioners and the Club currently is in litigation in state circuit court. If the state circuit court determines that the easterly boundary of the "A" parcels lies to the east of the "top of bank," consideration would have to be given to modifying any permit issued to the Club to insure that the designed "spread" of Lake 7 in a storm event up to and including a 100-year storm event does not encroach on the Petitioners' property. District Permit Requirements The District has never before processed an application for a surface water management permit allowing commingling of storm water and reuse water. The District applied Chapter 40D-4, Florida Administrative Code, in reviewing the Club's permit application. There are no specific provisions in Rule 40D-4 or the District's Basis of Review for Surface Water Management Permit Applications that address the commingling of stormwater and reuse water; on the other hand, no rules of the District prohibit the introduction of other types of water into a stormwater treatment pond so long as the requirements of Rule 40D-4 are met. The District has the authority to allow stormwater and reuse water to be commingled. Section 40D-4.301, Florida Administrative Code, contains the conditions for issuance of a surface water management permit. Permitting Criteria In order to obtain a surface water management permit to commingle stormwater and reuse water in Lake 7, the Club must provide reasonable assurances that the proposed modifications to its existing system will provide adequate flood control and drainage; not cause adverse water quality and quantity impacts on receiving waters and adjacent lands; not result in a violation of surface water quality standards; not cause adverse impacts on surface and groundwater levels and flows; not diminish the capability of the lake to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code; not cause adverse environmental impacts to wetlands, fish and wildlife or other natural resources; be effectively operated and maintained; not adversely affect public health and safety; be consistent with other public agency's requirements; not otherwise be harmful to water resources of the District; and not be against public policy. No surface or groundwater levels or flows have been set for this area of the District, so that permit criterion is not applicable to the Club's application. The Club's application will not impact wetlands or fish and wildlife associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are no wetlands regulated by the District in the project site. The Club has submitted to the District an operation and maintenance plan for the modified surface water management system. The operation and maintenance plan is in compliance with the District's permitting criteria contained in Rule 40D-4.301(1)(g). The District's regulation with respect to the requirement that a project not adversely affect the public health and safety is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The permitting criterion that a project must be consistent with the requirements of other public agencies was met by inclusion in the permit of Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition No. 3, which require that the surface water management permit be modified if necessary to comply with modifications imposed by other public agencies. The District's regulation with respect to the requirement that a project not otherwise be harmful to the water resources within the District is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The District's regulation with respect to the requirement that a project may not be against public policy is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with that criterion. The project will not have an adverse impact on water quality or quantity in receiving waters or adjacent lands. Under the District's regulations, the project would not be permittable if it caused flooding on property owned by other persons. Two concerns regarding off-site flooding were raised by Petitioners: first, the potential for flooding of the Petitioners' property; and, second, the potential for flooding of secondary systems connecting to Lake No. 7 such as private roads in the development. The project would violate the requirements of Section 40D-4.301(1)(a), Florida Administrative Code, which requires that a proposed project provide adequate flood protection and drainage, if raising the weir and berm elevation to 33.6 would cause the level of water in Lake No. 7 to move laterally up the bank and encroach on property owned by Petitioners. However, the Club has given reasonable assurances that the Petitioners own only to the "top of bank" and that raising the weir elevation to 33.6 would not cause water levels to rise above the "top of bank" of the lake. If it is determined in pending state circuit court proceedings that the Petitioners own beyond the "top of bank," any permit for the Club's project might have to be modified to avoid flooding the Petitioners' property. With respect to potential flooding of secondary systems, such as adjacent roadways, raising the elevation of water in Lake No. 7 would decrease the capacity of the storm sewers draining into the Lake. However, the proposed modifications would not increase the area of impervious surface in the drainage basin or decrease the size of the lake, and water levels in the roadways probably would not rise much higher than under present circumstances. The existing storm sewer system is only designed for a 10-year storm event, so the supplemental effect on roadway flooding from retaining a 100-year storm event in Lake No. 7 probably would be negligible. The Club gave reasonable assurances that any increase in water levels on the roadways from the proposed modifications would not be considered a significant adverse effect because it still would not affect public access. Sarasota County's land development regulations allow flooding in streets of up to 12 inches for a 100-year storm event, nine inches for a 25-year storm event, and six inches for a 10-year storm event. No portion of the proposed project area is within the 100-year floodplain. The project will not have an adverse effect on water quantity attenuation or cause flooding of the Petitioners' property or secondary systems, such as adjacent roadways. Petitioners have protested the effect that this project will have on water quality within Lake No. 7, itself. Surface water quality standards do not apply within a stormwater pond. Stormwater ponds are essentially pollution sinks intended to receive polluted runoff. Where there is no discharge from a pond, water quality treatment is irrelevant. Lake 7 is not a "water resource within the District" pursuant to Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j) limits the issues to be considered by the District to downstream water quality, water quantity, floodplain impacts, and wetlands impacts. The commingling of wastewater effluent treated to a level of advanced secondary or advanced waste treatment (reuse water) would improve water quality within a stormwater treatment pond at least 90 to 95 percent of the time. Stormwater is very low quality compared to reuse water. In most respects, reuse water also will be better quality than the well water presently being used to augment the pond. It is expected to be better quality than unimpacted water in the receiving waterbody with respect to nitrogen content and only slightly worse with respect to phosphorus content. The addition of reuse water should not promote more algal growth; rather, it should reduce the likelihood of algal growth. It also should not increase the incidences of fish kills in Lake 7. Nor should it alter the nutrient concentrations in Lake 7 so as to result in an imbalance of the natural population of aquatic flora and fauna. In the draft permit originally proposed to be issued to the Club, permit conditions required that water quality be monitored at the point of discharge to waters of the state. This requirement was eliminated from the revised permit as the District determined that it was not necessary in light of the modification of the system to retain the 100-year storm event. The subject design does not account for recovery of the water quality treatment volume within a specified period of time. However, there is no such requirement in District rules when a pond entirely retains the 100-year storm event, as is the case with this project. Even if there were a discharge from the surface water management system in a storm event up to and including a 100-year storm event, the Club gave reasonable assurances that water quality standards in the receiving waterbody would not be violated because of the effects of dilution. This project will not cause discharges which result in any violations of applicable state water quality standards for surface waters of the state. Based on a number of factors, including the peak rate factor, the curve number and the seasonal high water elevation, the water level in Lake 7 would reach an elevation of 33.57 if a 100-year storm event occurs. This results in the retention of the 100-year storm in Lake 7. The District only considers the 100-year storm event, by itself. It does not consider other rainfall events before or after it. However, the District does presume that ponds are at their seasonal high water level when the 100-year storm event occurs and that the ground is saturated. With respect to the seasonal high water level, there was substantial conflicting testimony. The Club's consultant used a seasonal high water level of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical engineering report prepared by Ardaman & Associates. A seasonal high water elevation of 31.0' was also used in the original permit application in 1985. In concluding that the seasonal high water level should be 31.0, the Ardaman report relied on several assumptions, including plugging of the underdrain and overflow weir and no discharges into or pumping out of the lake. These assumptions were made to establish an historical water level. The Petitioners' consultant disputed the determination in the Ardaman report that the seasonal high for Lake No. 7 was 31 on the grounds that the report indicated groundwater levels of 32.8 on three sides of the lake. He also felt that water levels would rise in the lake over time as a result of it being, allegedly, a closed system. While he did not have an opinion as to what the appropriate seasonal high should be, he felt it would be higher than 31 but lower than 32.8. However, he did no modeling with respect to calculating a seasonal high water level and would normally rely on a geotechnical engineer, such as Ardaman & Associates, to calculate seasonal high water levels. The District generally does not receive information as extensive and detailed as that included in the Ardaman report when it reviews permit applications. Among other things, the Ardaman report indicates a gradient across Lake No. 7 which makes the determination of the seasonal high for the lake difficult. The groundwater flow gradient results from the fact that the elevation of Lake No. 6 is approximately three feet lower than the elevation in Lake No. 7. The elevation determined by Ardaman may well be conservative in that the seasonal high of 31 is above the midpoint of the gradient. Although Lake 7 will be designed as an essentially closed system, it will have inflow from rainfall, surface runoff, introduction of reuse water and groundwater inflow, and outflows by way of evapotranspiration, withdrawal for irrigation purposes, and groundwater outflows. To alleviate any concerns about the validity of the seasonal high, it would be reasonable to include a permit condition requiring the Club to monitor the water level in Lake 7 on a daily basis, using staff gauges, after modification of the control structure. If such monitoring indicated that the seasonal high water level exceeds 31.0, the District could consider options to address that situation, including reducing the level at which reuse water is introduced into the lake or requiring water quality monitoring at the point of discharge to receiving waters. Groundwater quality is regulated by the Department of Environmental Protection, not by the District. The DEP permit issued to Sarasota County for disposal of reuse water at the Club golf course requires the installation of two groundwater monitoring wells, one in fairly close proximity to Lake No. 7. The Overlooked Pond There is a small retention pond northwest of Lake 7, near lot 113. Neither the Club nor the District considered the effect of the Club's late modification of its application on the retention pond northwest of Lake 7 and adjacent properties. Lake 7 and the retention pond to its northwest are connected by an equalizer pipe. As a result, water levels in the pond will be affected by water levels in Lake 7. There was no evidence as to the elevations of the banks of the retention pond. There was no evidence as to whether the modifications to the Club's application will result in flooding of properties adjacent to the pond. There was no evidence that the Club owns or controls the retention pond or the properties adjacent to it that might be affected by flooding that might result from the modifications to the Club's application.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the Club's amended application. RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. 1.-2. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease. Accepted and incorporated. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease and from which the western extent of the Club's leasehold interests in Lake 7 can be determined. Accepted and incorporated. But the topographic survey, together with other evidence, does show the eastern extent of the Petitioners' property in relation to the "top of bank" of Lake 7 and the western extent of the Club's leasehold interests in Lake 7. Rejected as contrary to the greater weight of the evidence that uses must be "specifically authorized" in that the lease authorizes the use of the premises for a "golf course," which is presumed to include uses inherent to the operation of a golf course that may not be further specified in the lease, such as drainage facilities, like Lake 7, and facilities for irrigation of the golf course. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that the Club does not pay for the maintenance of Lake 7, at least as between the Club and its lessor, which is the subject of the pertinent lease provision. (There was evidence as to a dispute between the Club and the Petitioners, or at least some of them, as to who is responsible for maintenance of land in the vicinity of the western extent of Lake 7 and the eastern extent of the Petitioners' property. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence to the extent that there are "A" parcels between lots 115 through 120 and Lake 7. Otherwise, accepted and incorporated. Accepted and incorporated. Not clear whether all of the activities listed in the second sentence are done in the entire area up to the water's edge but, otherwise, accepted and incorporated. Accepted, but subordinate to facts contrary to those found, and unnecessary. Accepted; subordinate to facts found. Rejected. The intent of the parties is not clear and is the subject of litigation in state circuit court. 17.-18. Accepted that some probably used the words "to the water's edge"; others may have said "to the lake" or "to the approximate high water line." Regardless of what they said, the legal consequences are being litigated in state circuit court. Subordinate to facts contrary to those found, and unnecessary. 19.-20. Accepted and incorporated to the extent not subordinate or unnecessary.. Last sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. The evidence was sufficient to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on the Alberti boundary survey that was attached to the individual deeds to all of the "A" parcels, in relation to the "top of bank" of Lake 7 and other topographical features depicted on Exhibit M-16. The 0.679 acre total for the "A" parcels was merely transcribed from the Alberti boundary survey (probably incorrectly, as the boundary survey seems to indicate the acreage to be 0.674, plus or minus.) Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, it will spread more than before the modifications, up to a maximum spread of approximately ten feet. Rejected as contrary to the greater weight of the evidence. The Club gave reasonable assurances that the spread would be contained within its leasehold interest. However, consideration would have to be given to modifying the permit if the state circuit court determines in the pending litigation that the easterly boundary of the "A" parcels lies to the east of the "top of bank." Accepted and incorporated to the extent not conclusion of law. Accepted. Self-evident and unnecessary. Accepted and incorporated. Accepted, but subordinate, and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. It does not prohibit it; it just does not authorize it. It provides that authorization may be obtained by permit modification. Accepted and incorporated to the extent not subordinate or unnecessary. 32.-36. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) 37. Rejected as contrary to the greater weight of the evidence that discharges will be "likely." (Accepted and incorporated that no discharges are expected as a result of storm events up to and including a 100-year storm event unless preceding conditions predispose the system to discharge during a 100-year storm event.) 38.-39. Accepted but subordinate and unnecessary. (As for 39., very little construction will be required for the proposed project.) Rejected as contrary to the greater weight of the evidence. First, Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a half inch will be added. Second, it is not clear that the Ardaman report established an "artificially low seasonal high water level." (There is a hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman report assumed no flow into or out of Lake 7; it also assumed no pumpage into or out of the lake.) Rejected as contrary to the greater weight of the evidence that it is based "solely" on that assumption. Accepted and incorporated that it is based on that and on other assumptions. Accepted and incorporated. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) Rejected as not supported by evidence. Rejected as contrary to the greater weight of the evidence to the extent that the impact is obvious--the water level in the pond will be approximately equal to the water level in Lake 7. Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, so will the water level in the pond. 47.-48. Accepted and incorporated. 49.-50. Accepted but subordinate and unnecessary. 51.-52. Accepted and incorporated. Respondents' Proposed Findings of Fact. 1.-7. Accepted and incorporated. 8. Rejected as contrary to the greater weight of the evidence in that there was more to the application than just substitution of reuse for well water. 9.-10. Accepted and incorporated. 11. Accepted and incorporated to the extent not subordinate or unnecessary. 12.-22. Accepted and incorporated. Rejected as not proven. (The two District witnesses disagreed.) Even if true, subordinate to facts contrary to those found. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. 28.-29. Accepted; subordinate to facts found, and in part conclusion of law. 30. Accepted. First sentence, incorporated; second sentence, subordinate to facts found, and in part conclusion of law. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted but subordinate to facts contrary to those found. 39.-40. Accepted and incorporated to the extent not subordinate or unnecessary. 41.-43. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. Last sentence, accepted and incorporated to the extent not conclusion of law; rest, accepted but subordinate to facts contrary to those found, and in part conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted, but subordinate, and unnecessary. Accepted and incorporated. First sentence, accepted but subordinate to facts contrary to those found; second sentence, accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. 51.-52. Accepted and incorporated. 53.-55. Accepted, but subordinate to facts found, and unnecessary. 56. Accepted and incorporated. 57.-62. Accepted and incorporated to the extent not subordinate or unnecessary. 63. Accepted and incorporated to the extent not conclusion of law. COPIES FURNISHED: Patricia A. Petruff, Esquire D. Robert Hoyle, Esquire Dye & Scott, P.A. 1111 Third Avenue West Bradenton, Flroida 34206 Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith, Schuser & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Mark F. Lapp, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston,Esq. General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899

Florida Laws (3) 120.57373.41390.202 Florida Administrative Code (2) 40D-4.30162-610.450
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CONCERNED CITIZENS OF ORANGE LAKE AREA vs CELEBRITY VILLAGE RESORTS, INC., AND ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, 91-002694 (1991)
Division of Administrative Hearings, Florida Filed:Ocala, Florida May 01, 1991 Number: 91-002694 Latest Update: Jun. 10, 1992

The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a Management and Storage of Surface Waters (MSSW) permit for a surface management system to serve its proposed development in Marion County, Florida.

Findings Of Fact PROPOSED PROJECT Celebrity is seeking a District MSSW permit to construct a surface water management system to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The entire site is within the geographic boundaries of the District. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Parts of Marion County and Alachua county have been designated as Sensitive Karst Area Basin by the District. The project site is located in the designated area. The existing land use is open pasture. The property was previously used for citrus groves. STANDING Concerned Citizens of Orange Lake Area is an unincorporated group of approximately 76 individuals who want to prevent pollution of Orange Lake. Of the 76 members, three members were present and testified at the hearing. The members attending the hearing were an artist (Riley), a photographer (Suto), and a bass guide (Solomon). Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site. Ms. Riley testified that she lives next door to Ms. Suto and determined that to be over two miles away from the site. Mr. Solomon testified that he lives on the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the project site. No witness testified that any member has a property interest in the subject property. Of the members who testified, none use the subject property. There was no testimony that other members use the property. Twenty-six members wrote letters of concern to the District. Ms. Suto testified to the existence of high levels of lead in her well water. WATER QUANTITY The existing land use, pasture, was used to determine the pre- development peak rate and volume of discharge. The existing surface drainage of the 75-acre project site is divided into two basins. On the north side of the property, the surface water flows toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a "2." The south portion of the property is contained within the landlocked drainage basin which is designated on the plans, sheet 3 of 16, by a "1." The post-development flow of surface water will be in the same direction as the pre-development flow. There are no proposed development plans or encroachments into the 100- year floodplain. Therefore, there is no increase in potential for damages to off-site property or persons caused by floodplain development or encroachment, retardance, acceleration, displacement, or diversion of surface waters. There is no reduction in natural storage areas and, in fact, the proposed project increases the natural storage on site. Drainage Basin 2 The District's criterion for systems discharging to basins with an outlet is that the post-development peak rate of discharge for the 25-year, 24- hour storm event shall not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. The District's criteria also require that the post-development volume of discharge not exceed the pre-development volume of discharge. The retention system which ultimately discharges to Orange Lake is designed to retain the entire 25-year, 24-hour storm event through the series of basins on site. The pre-development peak rate of discharge for the drainage basin which flows to the lake is 55 cubic feet per second (cfs) during the 25-year, 24-hour storm event. The post-development peak rate of discharge from drainage basin 2 is 4 cfs. The post-development peak rate of discharge is less than the pre- development peak rate of discharge. Runoff from each RV site will be collected in an individual, ten-inch- deep retention basin. Runoff from the road will be collected in roadside swales. Runoff from the clubhouse, country store, and associated parking lots will be conveyed to drainage retention area (DRA) No. 8. The individual retention basins have the capacity to retain the 25- year, 24-hour storm event without discharging. Any surface water discharges from the individual retention basins in Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5, and 7, respectively. In Basin 2D, runoff from the road and RV park model sites will flow to DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5. Basins 2G and 2F are located around two existing sinkholes which currently collect stormwater runoff. In the proposed project, Basins 2G and 2F continue to drain the same area as pre-development. However, additional impervious surfaces will be placed in the drainage area. For this reason, an additional three to five feet of clean fill will be placed in the bottom of each sinkhole for filtration purposes. Basins 2H and 2I are less than one acre and currently drain off site. Berms are proposed around the property line at the basin to keep the stormwater on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage swale. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is an off-line retention basin. The DRA No. 8 is equipped with a diversion box which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff from larger storms around the DRA so that the treatment volume of runoff (3/4 inch) continues to be treated in DRA No. 8 and does not mix with and discharge from DRA No. 8 during larger storms. Drainage Basin 1 Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked basin which does not discharge to Orange Lake. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows to the individual retention basins which retain the 25-year, 96-hour storm event. The runoff from the road flows to swales. Overflow from the basins and swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100- year, 24-hour or the 25-year, 24-hour storm event, pre-development or post- development Drainage Basin 1 is designed to retain the 100-year, 24-hour storm, which is an 11 inch storm event. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm event. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm event. WATER QUALITY Design Criteria The District's design criteria for water quality are set out in Section 40C-42.025, Florida Administrative Code. The District's retention criteria require that a proposed system have a treatment/pollution abatement volume of 1/2 inch of runoff from the site. For discharges to an OFW, the pollution abatement volume is increased by fifty percent. Therefore, the system must have the volume to retain 3/4 inch of runoff from the site. Each retention basin retains a minimum of 3/4 inch of runoff from the site. The District's criteria regarding quantity of water discharged require a larger volume of runoff to be retained than the District's criteria regarding quality. Therefore, the retention system exceeds the District's criteria regarding quality in order to meet the criteria regarding quantity. The District's retention criteria require that the basin recover the treatment volume within 72 hours. Most of the retention basins retain more than the required treatment volume of 3/4 inch, and most will also recover, or become dry, within 72 hours. The retention basins are capable of being effectively maintained in that the side slopes and bottom of the basins can easily accommodate mowing equipment. For erosion control, staked hay bales and silt screens will be utilized on site during construction to prevent the off-site transport of soil material. Following construction, the retention basins will be vegetated with sod to prevent erosion. The District's criteria require that facilities which receive stormwater runoff from areas with greater than fifty percent of impervious surface shall include a baffle or other device for preventing oil and grease from leaving the system. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal device called a baffle. The baffle is an acceptable engineering design for the removal of oil and grease from stormwater in a retention basin. The facility operation is uncomplicated. If the individual basins did fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96- hour in the landlocked basin, they would simply overflow into a DRA. No structures are involved to prevent flooding in large storm events. Water Quality Impacts The individual retention basin at each RV site is considered off-line because it does not discharge in the 25-year, 24-hour storm event. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they do not discharge during the design storm. DRA No. 8 is considered off-line because of the diversion box which provides for the retention of the treatment volume and diversion of the larger storms. Off-line retention systems generally show greater pollutant treatment efficiencies than other types of stormwater treatment. The first 1/2 inch of runoff or the "first flush" of rainfall contains ninety percent of the pollutants from the site. SURFACE WATER Utilizing information and methodologies generally accepted by experts in the field of water quality, the District analyzed and projected the average surface water and groundwater quality of the discharge from the surface water management system for the proposed project. No data on runoff concentrations currently exists for RV parks. This analysis was based on a review of existing data on untreated runoff concentrations from three multifamily developments and one highway study. Because data from studies of multifamily residential and highway projects was used, the District's estimates of the untreated runoff concentrations for this project are conservative in that the actual concentrations are probably less than estimated. The District's analysis of the average quality of the discharge from the proposed system was also based on projecting the treatment efficiencies associated with the system. This analysis was done by reviewing data from documented studies previously conducted to ascertain the treatment efficiency of retention methods of stormwater treatment. Generally, retention of the first 1/2 inch of runoff removes eighty percent of the pollutants. On this project, a treatment efficiency of ninety-five percent was assumed based on the fact that the system is off-line treatment and a minimum of 3/4 inch of runoff from the site will be retained in the basins prior to discharge. The expected average untreated runoff concentrations were then educed by the expected treatment efficiencies to project post-treatment water quality of the discharge from the proposed system. These numbers were then compared to Chapter 17-302, Florida Administrative Code, water quality standards for Class III water bodies, and ambient water quality in Orange Lake. Orange Lake is classified as an OFW. Therefore, the proposed project cannot be permitted if it will cause degradation of that water body. The background data or ambient water quality data for phosphorous and nitrogen was taken from the Orange Lake Biological Report by the Florida Game and Freshwater Fish Commission in 1986. The ambient water quality for the other parameters in Table 2 of District Exhibit 2 was computed using eight years of data from a District monitoring station on Orange Lake. The projected average concentration for each constituent in the discharge from the system is less than the ambient water quality of Orange Lake. Therefore, the proposed surface water discharge will not violate state water quality standards in waters of the state. The post-development pollutant loading rates should be equal to or better than the pollutant loading rates from the use of the property as citrus or pastureland because the runoff is being retained on site and treated before being discharged. GROUNDWATER Groundwater discharges were reviewed by assessing the type of soil below the retention basin and the distance to the water table. The soil on the site contains some organic matter which is beneficial for treatment purposes. Based on the borings submitted by Celebrity, the water table, if any, is five feet or more below the bottom of any proposed retention basin. Runoff in the basin will percolate through the soil. Nutrients such as nitrogen and phosphorus will be taken up by the vegetation in the bottom of the basins. Metals will bind to the soil material below the basin. Oils and greases will be broken down through microbial degradation into nontoxic material. Groundwater discharges from the proposed system will not violate any applicable state groundwater quality standards. These standards will be met within the first three feet below the treatment basins. The standards will also be met by the time the groundwater discharge moves to the edge of the zone of discharge which is at the property boundary. The discharge from the proposed Celebrity project will not cause or contribute to a violation of state water quality standards in the receiving waters. SINKHOLES Sinkholes may form on the site. Sinkholes that form will probably be "cover subsidence" sinkholes. Cover subsidence sinkholes are those in which a void below the surface fills with the soil from above, causing a depression in the ground surface. There are four relict sinkholes on site. They are cover subsidence sinkholes. The sinkhole nearest the lake has water in the bottom. Stormwater runoff is directed away from the sinkhole. Any water which enters the sinkhole from the land surface or above will enter from the sky. The District has proposed criteria for stormwater systems in designated Sensitive Karst Area Basins. Those criteria are that 1) the water in the basins shall be no deeper than ten feet deep; 2) there should be at least three feet of unconsolidated material between the bottom of the basin and the top of the water table; and 3) the basins should be fully vegetated. The District currently applies these criteria as policy. In this project, the basins are shallow, ranging from ten inches deep at the RV sites to 2 1/2 feet in the DRAs. The basins have at least three feet of unconsolidated material between the bottom of the basin and the top of the water table. In the soil borings performed by Celebrity, the water table was shown to exist between five and fifty feet below land surface. The proposed project design meets or exceeds the proposed criteria for Sensitive Karst Area Basins. The basins will be fully vegetated or sodded with grass. Lineations or lineaments are solution features which may indicate a fracture of the underlying limestone. There may be a lineament on the site. There are other sinkholes in the area. If a cover subsidence sinkhole develops in an individual retention basin or DRA, stormwater, if any, will seep or percolate through the several feet of soil prior to reaching an aquifer. Most of the pollutants in the retention basin will meet groundwater quality standards prior to percolation and further treatment in the soil. OPERATION AND MAINTENANCE Special conditions Nos. 13, 14, and 15 on the permit will require Celebrity to inspect the system monthly for sinkhole development. If a sinkhole develops, Celebrity must notify the District within 48 hours of its discovery. Celebrity must submit a detailed repair plan within 30 days for written approval by the District. Celebrity proposes to repair any sinkholes that develop by a District- approved method. Celebrity Resorts, Inc., is a legally established corporation registered in Delaware and owns the subject property. Celebrity does not intend to subdivide the property but to sell memberships to use the property on a time-share basis. Celebrity will administratively operate the site by employing a park manager who will remain on the property 24 hours a day. If any problems occur with the basins, either he or his designee will be on site to respond quickly to the situation. The park manager will have a full-time maintenance staff which will operate the park. Celebrity will financially operate and maintain the proposed system using funds currently raised and in the future by membership fees. Celebrity is a publicly held corporation. Funds raised from the sale of stock, approximately $3,500,000, have paid for legal and administrative fees as well as the land purchase. Approximately $400,000 has been reserved to operate the facility. It will cost approximately $15,000 per month to run the park. Memberships will be sold for $300 per year. Part of the membership fees will go toward the general maintenance of the site. Maintenance of the proposed system will include regular mowing and monthly inspection for sinkholes and repair if necessary. WETLANDS IMPACTS OF THE PROJECT The property contains waters of the state wetlands and isolated wetlands. The waters of the state wetlands are those along the shore of Orange Lake. One isolated wetland exists on site in the sinkhole which is closest to the lake. The sinkhole has standing water in which lemna, or duckweed, is growing. Duckweed is a listed plant species in Section 16.1.1(2) of the Handbook. No construction is proposed in either the waters of the state wetlands or the isolated wetland. The District criteria require the review of impacts to off-site aquatic and wetland dependent species relative to the functions currently provided by the wetlands to these types of fish and wildlife. Since there will be no construction in the wetlands, there will be no impacts to the habitat, abundance and diversity, or food sources of off-site aquatic and wetland dependent species from this proposed project. No threatened or endangered aquatic and wetland dependent species were observed on site. The proposed permit application will not adversely affect natural resources, fish, or wildlife in a manner which is inconsistent with the District criteria. The proposed permit application will not adversely affect hydrologically-related environmental functions in a manner which is inconsistent with the District criteria.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be issued a MSSW permit for its system as designed and proposed. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Concerned Citizens of Orange Lake Area 1. Proposed findings of fact 1-6 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. 1. Proposed findings of fact 1-38 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8- 20); 21(2); 22-31(21-30); 32(16); and 33-107(31-105). COPIES FURNISHED: Crawford Solomon Qualified Representative Concerned Citizens of Orange Lake Post Office Box 481 Citra, FL 32681 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Nancy B. Barnard Attorney at Law St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429

Florida Laws (3) 120.52120.56120.57 Florida Administrative Code (1) 40C-42.025
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FLORIDA AUDUBON SOCIETY vs SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 90-002402 (1990)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Feb. 24, 1992 Number: 90-002402 Latest Update: Aug. 23, 1996

The Issue The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.

Findings Of Fact Based upon all of the evidence, the following supplemental findings of fact are determined: Background Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below. A Brief Description of the Development and System The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes. The Wastewater Treatment Plant The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to: construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets 1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to 0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake. Adequacy of Separation Between Plant and System Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows: Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions. The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground. The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields. The Computer Models As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow. The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert. Water Quantity Impacts There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows. Water Quality Impacts The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall. Adverse Environmental Impacts There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers. Miscellaneous During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of March, 1991.

Florida Laws (3) 120.57373.403373.413 Florida Administrative Code (2) 40E-4.09140E-4.301
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HOWARD EHMER AND NINA EHMER vs CITY OF DELTONA AND ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, 04-002403 (2004)
Division of Administrative Hearings, Florida Filed:Deltona, Florida Jul. 12, 2004 Number: 04-002403 Latest Update: Jul. 25, 2005

The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).

Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.

Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177

Florida Laws (3) 120.569120.57373.086 Florida Administrative Code (6) 40C-4.30140C-4.30240C-4.33140C-4.75162-302.30062-4.242
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CALOOSA PROPERTY OWNERS ASSOCIATION, INC. vs. CALEFFE INVESTMENT, LTD.; WORTHINGTON ENTERPRISES; ET AL., 82-003155 (1982)
Division of Administrative Hearings, Florida Number: 82-003155 Latest Update: Jul. 05, 1983

The Issue The ultimate issue to be addressed in this proceeding is whether the Applicants should be granted a dredge and fill permit. Petitioner contends that the Applicants have failed to provide reasonable assurances that the short-term and long-term effects of their proposed activities will not result in violations of the Department's water quality standards for both surface water and groundwater. The Applicants and the Department contend that reasonable assurances have been provided.

Findings Of Fact The Applicants are the owners of a 1,248-acre parcel of land located at the intersection of State Road 710 and State Road 711 in northern Palm Beach County, Florida. The Applicants are proposing to develop an industrial park known as "Palm Beach Park of Commerce" (PBPC). PBPC will provide sites for tenants to carry on various commercial and industrial activities. In order to prepare the site for development, the Applicants have designed a surface water management system. In order to develop the system, the Applicants must conduct dredging and filling activities in areas where the Department of Environmental Regulation has permitting jurisdiction. The Petitioner is an association of home owners within a single family residential development known as "Caloosa." The development is located to the southeast of the proposed PBPC. Surface and ground water flows from the PBPC site are toward Caloosa. Residents of Caloosa and members of the Petitioner are entirely dependent on private individual wells for their drinking water. The surficial aquifer is the only viable source of drinking water. The proposed PBPC surface water management system would allow water to drain from the site into an excavated canal which would essentially follow the perimeter of the site. The canal would discharge at the southeast corner of the site into the Caloosa Canal, which runs through the Caloosa residential development. The Caloosa Canal is designated as a Class III water body. The Caloosa Canal drains into the "C-18 Canal," which is maintained by the South Florida Water Management District. The point at which the Caloosa Canal discharges into the C-18 Canal is approximately 2.4 miles from the PBPC site. The C-18 Canal is designated as a Class I water body. The C-18 Canal ultimately discharges into the Loxahatchee River Basin, a Class II water body, which is located approximately 12.9 miles from the PBPC site. It is possible that during some periods of the year, water from the PBPC site would ultimately find its way to the Jonathan Dickinson park, where water has been designated as "outstanding Florida waters." It is approximately 13.2 miles from the PBPC site to the Jonathan Dickinson Park. The PBPC site is a high, marginal, stressed Everglades system. It is a prairie or pine flatwood area. During periods of heavy rainfall, water covers most of the site. During dry periods, there is standing water only in depressions. Approximately 200 acres of the site are inundated with water during a sufficient portion of the year to support predominantly wetland vegetation. Approximately 24 acres of the wetlands on the site are directly connected to drainage ditches that presently rim the site. The ditches are connected to the Caloosa Canal so that these 24 acres are ultimately connected through canal systems to the Loxahatchee River. These wetland areas, which will be hereafter referenced as "jurisdictional wetlands," are the only wetland areas other than the existing drainage ditches over which the Department of Environmental Regulation asserts jurisdiction under its Rule 17-4.28, Florida Administrative Code. As a part of its surface water management system, the Applicants propose to maintain 133.7 acres of the wetlands on the site in their natural condition. These wetland areas would be incorporated into the surface water management system so that surface water would flow into the wetlands, then through culverts or drainage ditches into the perimeter canal. The remaining wetlands on the site, including all of the "jurisdictional wetlands," would be filled. The wetlands on the PBPC site perform a significant water quality function. The wetlands serve as a filtration system. Wetland vegetation removes nutrients and turbidity from surface water before it is discharged into the canals and ultimately into the Loxahatchee River. The wetlands that the Applicants propose to preserve on the site would continue to perform that beneficial function. In order to mitigate the loss of the wetlands that would be filled, the Applicants propose to create approximately 85 acres of new wetland areas and to vegetate these areas. These artificially created wetlands, if properly constructed, vegetated and maintained, would perform the same beneficial functions as the natural wetland communities. The Applicants have proposed to introduce several safeguards into their water management system to assure that the quality of surface and ground water in the area will not be adversely impacted. The preservation of 133 acres of natural wetland areas and the creation of approximately 85 acres of artificial wetland areas is one of these safeguards. In addition, the surface water management system includes the creation of swales around water bodies so that the first one inch of stormwater runoff on the site will not drain directly into surface water bodies. By retaining the first one inch of runoff, pollutants contained in stormwater runoff will be retained on the site and will not enter surface or ground waters. Each commercial or industrial site at PBPC will be required to retain an additional one inch of stormwater runoff on the individual site. This will serve to filter pollutants out of stormwater runoff even before the runoff reaches the overall surface water management system in which one inch of runoff will also be retained on site. The Applicants have also agreed to establish a surface water quality management program to prohibit the discharge of any industrial waste into the surface water management system and to have the surface water management system maintained by the Northern Palm Beach Water Control District. There are further safeguards proposed by the Applicants. The Applicants have agreed to prohibit the most potentially hazardous industrial activities from being undertaken on the site. Applicants have also agreed to require each individual site plan to be reviewed by local government, the South Florida Water Management District, and the Department of Environmental Regulation so that potential water quality problems connected with site-specific uses can be identified and, if necessary, prohibited. The Applicants have agreed to establish an environmental liaison officer whose function will be to monitor all development on the site and report routinely to local government, the South Florida Water Management District, and the Department of Environmental Regulation regarding environmental issues. In order that any potential groundwater pollution can be detected and, if necessary, steps taken to remove pollutants from the groundwater, the Applicants have agreed to establish well- monitoring systems for the project as a whole and for individual sites. Individual site plans have not yet been formulated. It is not practical or possible to design water monitoring programs for the individual sites at this time. Once the nature of activities at a site are known, monitoring programs can be effectively set up and maintained. In the event that surface or ground water contamination occurs, it can be detected through monitoring programs, and the contaminants can be removed. The Applicants have provided reasonable assurance that the short-term and long-term effects of the construction of the PBPC water management system will not result in violations of the Department's water quality standards for surface or ground water. By use of turbidity screens during construction, short-term impacts will be negligible. Absent any construction on the site beyond the creation of the surface water management system, it is likely that the quality of water leaving the PBPC site will be as good or better than at present. Since the Applicants have not yet located tenants or made individual site plans for commercial and industrial activities within PBPC, it is not possible to determine if some specific activity in the future could operate to cause violations of the Department's water quality standards. In order that there be such assurances, the Applicants have agreed to subject individual site plans to review by local government, the South Florida Water Management District, and the Department of Environmental Regulation. In the event that a future tenant is not able to provide required assurances, the use can and should be prohibited, and can be prohibited by regulatory agencies as a condition of permits issued to the Applicants. Water quality violations presently occur in the Caloosa Canal and the C-18 Canal. The safeguards proposed by Applicants reasonably assure that the implementation of the proposed water management system will not exacerbate or cotribute to these violations. There is approximately an 11-square-mile area which drains into the Caloosa Canal through the outfall at the southeast corner of the PBPC site. The PBPC site constitutes approximately two square miles of this area. The remaining nine square miles are located to the north and west of the PBPC site. These off-site areas are undeveloped and have an ecology very similar to the presently undeveloped PBPC site. The evidence would not establish a finding that development of these off-site parcels together with development of the PBPC site would cumulatively result in water quality violations of surface or ground waters. The Applicants will be required to obtain permits to construct a wastewater treatment facility on the PBPC site. Whether any proposed wastewater treatment system will meet the standards of regulatory agencies would appropriately be considered in later proceedings. Similarly, individual tenants will, in some cases, be required to operate wastewater treatment systems that pretreat industrial waste before it is introduced into the system-wide wastewater treatment system or before it is otherwise removed from the site. These systems would also be subject to future permitting proceedings. Some of the potential activities that could be carried on by tenants at the PBPC involve the use of volatile organic compounds and other hazardous toxic substances. If proper techniques are not followed for the handling of such substances, or if some accident occurs, the substances could be introduced into the surface and ground waters. Review of each individual site plan and the establishing of systems for properly handling toxic substances can reduce the possibility of incidents occurring. Human frailties existing as they do, however, it is not unlikely that such an incident will occur. If such an incident occurs, it is vitally important that the contamination of surface or ground water be quickly detected and that steps be taken to remove the contaminant. The establishing of proper monitoring systems can reasonably assure that the contamination is identified. Techniques do exist for removing contaminants from surface and ground waters. Since individual tenants and site plans have not yet been established, it is not possible to make any finding as to whether any individual tenant or site plan might operate in such a manner as to cause violations of the Department's water quality standards. It is therefore appropriate that individual tenants and site plans be subjected to further review by appropriate regulatory agencies before they are permitted to operate on the PBPC site. The Applicants have agreed to such a review process. Since surface water flows into the Caloosa Canal can be controlled through the outfall structure at the southeast corner of the PBPC site, it appears practical to isolate any contaminant that might enter the surface water and to remove it. Groundwater flows in the aquifer lying below the PBPC site are very slow--less than one-tenth of one foot per day. Given such flow rates, it is likely that any contaminants that enter the groundwater can be detected and effectively removed. Even given the implementation of the best procedures for handling toxic substances, the best monitoring program for detecting accidental releases of the substances, and the best systems for removing the substances from surface and ground waters, there is some possibility that an accident could occur, that a contaminant would not be detected, and that violations of the Department's water quality standards could occur as a result in the Caloosa Canal or in the groundwater which underlies the Caloosa development and provides drinking water to residents there. The result of such an incident could have very serious impacts. The introduction of toxic substances into the surface waters could cause a substantial damage as far downstream as the Loxahatchee River Basin. Contamination of the groundwater could result in a loss of water supply to residents or in serious public health consequences. While such possibilities exist, they appear unlikely given the safeguards that have been proposed for PBPC. The Applicants do not propose to undertake any dredging or filling activities in any navigable waters.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order issuing a permit to Caleffe Investment, Ltd., Worthington Enterprises, Inc., to conduct the dredging and filling activities proposed by the Applicants. To ensure that state water quality standards will not be violated, the conditions cited in the Department's Intent to Issue notice dated October 22, 1982, should be made a part of the permit. In addition, the following conditions should be made a part of the permit: All individual site plans within PBPC should be subject to the Department's permitting processes in accordance with Rule 17-4.28, Florida Administrative Code, and other provisions of Chapter 17, Florida Administrative Code, and Chapter 403, Florida Statutes, as may apply. The Applicants should be required to post bond in a sufficient amount to assure proper implementation and operation of monitoring systems for individual sites and to assure that adequate funds are available to remove and properly treat contaminants that might enter surface or ground waters as a result of accidents. RECOMMENDED this 19th day of May, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 19th day of May, 1983. COPIES FURNISHED: Randall E. Denker, Esquire Lehrman & Denker Post Office Box 1736 Tallahassee, Florida 32302 Dennis R. Erdley, Esquire Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert M. Rhodes, Esquire Terry E. Lewis, Esquire James Hauser, Esquire Messer, Rhodes & Vickers Post Office Box 1876 Tallahassee, Florida 32302 Alan J. Ciklin, Esquire Boose & Ciklin 8th Floor - The Concourse 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Tracy Sharpe, Esquire Farish, Farish & Romani 316 First Street West Palm Beach, Florida 33402 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Liz Cloud, Chief Administrative Code Bureau Department of State The Capitol, Suite 1802 Tallahassee, Florida 32301 Carroll Webb, Esquire Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Florida Laws (4) 120.56120.57403.087403.812
# 7
BROWARD COUNTY vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-001048 (1980)
Division of Administrative Hearings, Florida Number: 80-001048 Latest Update: Jan. 20, 1983

Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.

Florida Laws (6) 120.57120.60253.12403.087403.18290.803
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STEVEN E. LARIMER, KATHLEEN LARIMER, AND HELEN ROSE FARROW vs CITY OF DELTONA AND ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, 04-003048 (2004)
Division of Administrative Hearings, Florida Filed:Deltona, Florida Aug. 30, 2004 Number: 04-003048 Latest Update: Jul. 25, 2005

The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).

Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.

Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177

Florida Laws (3) 120.569120.57373.086 Florida Administrative Code (6) 40C-4.30140C-4.30240C-4.33140C-4.75162-302.30062-4.242
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JOSEPH BELANGER, PATRICIA BELANGER, JEROME STRAUSS, AND SUSAN STRAUSS vs CONQUEST DEVELOPMENTS USA L.C., AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 02-000116 (2002)
Division of Administrative Hearings, Florida Filed:Naples, Florida Jan. 09, 2002 Number: 02-000116 Latest Update: Sep. 30, 2002

The Issue The issue is whether an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 24th day of July, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556

Florida Laws (3) 120.569120.577.02
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