Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 30th day of November, 1983.
Findings Of Fact The Proposed Permit This case involves a 65-acre site in north Lee County owned by the City of Ft. Myers. At all material times, the land has been zoned under industrial- equivalent designations. By leases that are not part of this record, Ft. Myers has leased 21.4 acres of the 65 acres to various governmental agencies, including Lee County, Lee County Sheriff's Office, and possibly the Florida Department of Juvenile Justice (formerly known as Department of Health and Rehabilitative Services). The following facilities are presently located on the 21.4 acres: Juvenile Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office Aviation Department, and Emergency Operations Center. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6 undeveloped acres to Lee County for a term of 50 years. This lease allows Lee County to use the 43.6 acres for $1 per year, but only for the operation of a Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may terminate the lease if Lee County ceases to operate the facility. Likewise, Lee County may terminate the lease if the Department of Juvenile Justice ceases to fund the County's operation of the facility. Under the lease, preference is given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates liability to Lee County for claims or damages arising from released fuels, including from pipelines. The lease is not assignable without Ft. Myer's consent. By agreement dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6- acre parcel to the Department of Juvenile Justice for the purpose of the construction of a juvenile residential commitment facility. Lee County receives no rent from the Department of Juvenile Justice. In Paragraph 10 of the agreement, the Department of Juvenile Justice agrees to maintain, at its expense, "all improvements of every kind . . .." Lee County must make any repairs to improvements if the Department of Juvenile Justice fails to do so. By subsequent agreement, Respondent Department of Management Services (DMS) became the agent for the Department of Juvenile Justice for the design, permitting, and construction of the juvenile justice facility. By Application for a surface water management permit executed June 16, 1994, DMS applied for a surface water management permit for the construction and operation of a 10.9- acre project known as the Lee County Juvenile Commitment Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County and subleased to the Department of Juvenile Justice. The application states that the existing 21.4 acres of developed sites, which are leased under separate agreements to different governmental entities, "will be permitted as is." The Staff Review Summary of Respondent South Florida Water Management District (SFWMD) describes the purpose of the application as follows: This application is a request for Authorization for Construction and Operation of a surface water management system to serve a 10.9 acre Institutional project discharging to Six Mile [Cypress] Slough via onsite wetlands and road- side swales. The application also requests Authorization for Operation of a surface water management system serving a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Staff recommends approval of both authorizations with conditions. The Staff Review Summary accurately states that the owner of the land is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases to Lee County the 21.4 acres devoted to the five existing facilities. Although Lee County probably is a lessee of some of these parcels, the Lee County Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels. One of the other parcels may involve a state agency, again under either a lease or a sublease. The Staff Review Summary inaccurately states that the project developer is Lee County. The project developer is DMS or its principal, the Department of Juvenile Justice. The Staff Review Summary reviews the existing development on the 21.4 acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9- acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's Office Aviation Department, and 3.9-acre Emergency Operations Center. The Staff Review Summary states that the footer of the Juvenile Detention Center was inspected in February 1980. The site drains into a 1.2- acre retention pond, which was a natural pond dug out to accept the drainage from the Juvenile Detention Center. A small amount of surface flow drains from the Juvenile Detention Center to a perimeter swale that drains west into a ditch running along Ortiz Avenue. The Staff Review Summary states that the building permit for the Price Halfway House was issued in October 1982. The site drains into the 1.2-acre retention pond, which was apparently enlarged a second time to accept the additional flow. A small amount of the flow from the Price Halfway House also drains to the perimeter swale and west into the Ortiz Avenue ditch. The Staff Review Summary states that the building permit for the Lee County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a determination that no permit was required for two additions to the stockade in 1988 and 1989. For the additional impervious surface added by these additions, one inch of water quality treatment was provided. After the abandonment of a pumping system, drainage of the stockade site consists of water building up in existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The Staff Review Summary adds that a small retention area constructed at the southeast corner of the site treats stormwater from the stockade and the Sheriff's Office Aviation Department. The summary adds that a small amount of stormwater drains north into an exterior swale that drains into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Sheriff's Office Aviation Department in August 1977. Stormwater from the site sheetflows to exterior swales north and south of the building. When the swales fill up, the water flows into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Emergency Operations Center on October 11, 1977. Drainage from the center flows directly into the Ortiz Avenue ditch. Under "Water Quality," the Staff Review Summary reports that SFWMD "did not require compliance with discharge rate or criteria" based on Section 1.6, Basis of Review for Surface Water Management Permit Applications within the [SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD for the construction and operation of surface water management systems. The summary adds that there have been no "water quality or quantity complaints associated with this site over the past 18 years since its initial construction." Noting that a surface water management permit is requested for the entire 65-acre parcel, the Staff Review Summary states that the above-described drainage systems for the five existing facilities are "operational and will remain as they now exist." Turning to the proposed development, the Staff Review Summary states that the remaining 43.6 undeveloped acres "will also be leased to Lee County by the City for the proposed commitment facilities." The facilities are accurately described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which will be drained by internal drainage swales and culverts flowing into detention areas, which will discharge through a control structure into onsite wetlands leading to the Ortiz Avenue swale. Addressing designed discharge rates, the Staff Review Summary acknowledges that the bootcamp's discharge rate will exceed the allowable rate for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the design rate is .37 cfs. The Staff Review Summary explains that this discrepancy results from the use of the minimum size orifice (three inches) in the control structure. Addressing water quality, the Staff Review Summary reports that commercially zoned sites are required to provide one-half inch dry pretreatment for water quality unless reasonable assurance can be provided that hazardous material will not enter the surface water management system. Determining that no hazardous material will be stored or generated on the site, SFWMD did not require the one-half inch dry pretreatment of runoff. Noting that no surface water management permits have ever been issued for any part of the 65-acre parcel, the Staff Review Summary recommends that, subject to the customary Limiting Conditions, SFWMD issue: Authorization for Construction and Operation of a 10.9 acre Institutional Project discharging to Six Mile Cypress Slough via onsite wetlands and roadside swales, Operation of a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Limiting Condition 4 states that the permittee shall request transfer of the permit to the "responsible operational entity accepted by [SFWMD], if different from the permittee." Limiting Condition 8 adds: A permit transfer to the operation phase shall not occur until a responsible entity meeting the requirements in section 9.0, "Basis of Review . . .," has been established to operate and maintain the system. The entity must be provided with sufficient ownership or legal interest so that it has control over all water management facilities authorized herein. Special Condition 11 states: "Operation of the surface water management system shall be the responsibility of Lee County." The Permittee and the Entity Responsible for Maintenance The proposed permit consists of two authorizations. The first authorization is for the construction and operation of the surface water management system on the 10.9-acre parcel on which will be constructed the bootcamp and halfway house. The second authorization is for the operation of the existing surface water management system on the already-developed 21.4 acres and the unimproved surface water management system on the remaining 32.7 acres. There are two problems with the designation of Lee County as the entity responsible for maintaining the permitted surface water management systems. Basis of Review 9.1.B states: To satisfy [P]ermit [L]imiting [C]ondition [8], the Permittee must supply appropriate written proof, such as either by letter or resolution from the governmental entity that the governmental entity will accept the oper- ation and maintenance of all the surface water management system components . . .. The authorization for operation of the systems on the 21.4-acre and 32.7-acre parcels does not await any construction. Once the permit is issued, the authorization is effective. Therefore, all prerequisites to the designation must have been satisfied before the operation permit issues. For the 21.4-acre parcel, DMS has not provided reasonable assurance that Lee County is the lessee or sublessee of all of the parcels underlying the five existing facilities. In fact, it appears that Lee County is not the lessee or sublessee of all of these parcels. Even if Lee County were the lessee or sublessee of these five parcels, DMS has not provided reasonable assurance that Lee County has assumed responsibility for the maintenance of the surface water management system for the five parcels. Contrary to Basis of Review 9.1.B, there is no written agreement by Lee County to assume operational responsibility, nor is there even an actual agreement to this effect. SFWMD's rules sensibly require that written consent be obtained before the operation permit is issued. Likewise, DMS has failed to show that Lee County has agreed to assume responsibility for the operation and maintenance of the surface water management system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before issuing the permit because no construction will precede operation for the surface water management system on this parcel. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel is leased to Lee County as part of the 43.6- acre parcel. But in the December 17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes responsibility for maintaining all improvements, which arguably includes drainage improvements. As between Ft. Myers and Lee County, Lee County assumes secondary liability for the maintenance of all improvements. But the failure of the Department of Juvenile Justice to do so would likely represent a default under the agreement. In such a case, the lease and separate agreement probably would either be in litigation or Lee County would have terminated its obligations under the contracts. In either case, it is unlikely that Lee County would perform its secondary responsibility to maintain the drainage improvements, especially where it is receiving no rent from the Department of Juvenile Justice and priority is given to Ft. Myers juveniles in admission decisions. Construction will precede operation as to the 10.9- acre parcel so the parties have an opportunity, even after the construction and operation permit is issued, to secure the necessary written consent before the operation permit goes into effect. But similar deficiencies exist with respect to the 10.9- acre parcel because the same agreement imposes upon the Department of Juvenile Justice, not Lee County, the obligation to maintain improvements. An additional complication arises as to the 10.9-acre parcel. The Department of Juvenile Justice intends to contract with one or more private entities to operate the bootcamp and halfway house, so there is at least one more party that Lee County could claim was responsible for maintenance of the surface water management system. The question of who is responsible for maintaining the surface water management systems is important. Drainage quantities and directions can change if swales clog up with vegetation or other matter. In this case, one roadside swale in the area of the 21.4-acre parcel is blocked with vegetation. DMS and SFWMD have thus failed to provide reasonable assurance that the designated entity has assumed responsibility for the maintenance and operation of the existing systems or will assume responsibility for the maintenance and operation of the proposed system following its construction. Permit for Existing Development Section 1.6, Basis of Review, states: [SFWMD] issues construction and operation permits for proposed surface water management activities and operation permits for existing systems. The criteria herein are specifically designed to apply to proposed activities (construction and operation permits). Therefore, some of the criteria may not be applicable to the permitting of existing systems (operation permits). For example, in some cases, existing systems may not meet flood protection criteria. Criteria deviation for existing systems will be identified in staff reports. SFWMD has produced no evidence explicating the extent to which existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are entitled to operating permits without meeting some of the criteria applicable to proposed systems, such as the system on the 10.9-acre parcel. There is nothing whatsoever in the record to explain why certain existing systems might not have to meet certain criteria, such as flood protection criteria. Except for the quantity deviation discussed below, there is nothing in the record disclosing the extent to which SFWMD has waived, or even considered the applicability of, certain or all criteria prior to the issuance of operation permits for the existing systems. In practice, SFWMD does not adhere even to the vague standards implied in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit existing systems "as is, where is," as long as they have had no reported problems. There are numerous deficiencies in the "as is, where is" unwritten policy, apart from the obvious one that it conflicts with the assurance of 1.6 that only "some of the criteria may not be applicable" to existing systems. First, the record does not define what a "problem" is. Second, the record discloses no means by which reported problems are collected and later accessed, such as by a parcel index. The "as is, where is" policy is an abdication of the limited responsibilities that SFWMD imposes upon itself in 1.6, especially when applied to the present facts. The facts are straightforward. Neither Ft. Myers, Lee County, nor any other party has ever obtained a permit for any surface water management system, despite numerous improvements in the past 20 years requiring such permits, including the construction of a heliport, at which maintenance and refueling of helicopters takes place. In two relatively minor cases, discussed below, SFWMD erroneously determined that no permit was required. In one of those cases, the applicant, Lee County, candidly admitted the existence of a flooding problem. Based on the present record, neither DMS nor SFWMD has justified the issuance of an operation permit for the systems on the 21.4- and 32.7-acre parcels based either on Basis of Review 1.6 or on the "as is, where is" unwritten policy. Construction of the five improvements on the 21.4 acres began between 1975 and December 1977 with construction of a portion of the Lee County Stockade building and parking, Emergency Operations Center building and parking, and a now- removed barn for the Lee County Sheriff's Office. At the same time, a lake was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of the 21.4 acres were converted to impervious surface. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were converted to impervious surface by the construction of a perimeter dike and road. During this period, construction commenced on the Juvenile Detention Center, adding another 1.63 acres of impervious surface. Between March 1980 and December 1981, additions were made to the Lee County Stockade building and the lake for an additional 0.45 acres of impervious area. Between December 1981 and March 1984, the Price Halfway House building and parking were constructed, adding another 0.79 acres of impervious surface. Between March 1984 and February 1986, a heliport facility and landing area were constructed for the Lee County Sheriff's Office, adding another 1.01 acres of impervious surface. Between February 1986 and February 1990, an additional 2.31 acres of impervious surface were added through additions to the Lee County Stockade and parking area, juvenile detention center, and Emergency Operations Center parking area. Between February 1990 and April 1993, another addition to the Lee County Stockade added 0.62 acres of impervious surface. An additional 0.17 acres of lake was excavated. During this time, applicable rules and statutes required permits for the construction of "works" affecting surface water, including ditches, culverts, and other construction that connects to, or draws water from, drains water into, or is placed in or across the waters in the state. The buildings, parking, other impervious surfaces, ditches, swales, dikes, lake excavations, and, at one point, addition of a now- abandoned pump all constituted "works" for which surface water management permits were required. In 1988, Lee County or Ft. Myers applied for an exemption for an addition to the Lee County Stockade. The basis for the claim of exemption was that the parcel consisted of less than 10 acres and the total impervious surface did not exceed two acres. Although rules in effect at the time required consideration of the contiguous 65 acres under common ownership and the total impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD erroneously issued an exemption letter. The second instance involving a claim of exemption took place in 1989 when Lee County submitted plans for another addition to the Lee County Stockade, adding 0.51 acres of impervious surface. The submittal acknowledged a "flooding" problem, but promised a master drainage plan for the "entire site." SFWMD determined that no permit would be required due to the promise of a master drainage plan. No master drainage plan was ever prepared. The flooding problem precluded issuance of the operation permit on an "as is, where is" basis for the already-developed 21.4-acre parcel, even assuming that SFWMD adequately justified the use of this unwritten permitting procedure. In fact, SFWMD has not explained adequately its "as is, where is" permitting procedure or even the undelineated permitting criteria referenced in 1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential permitting of existing systems. The owner and developer constructed the existing systems in near total disregard of the law. The two times that the owner and developer complied with the permitting process involved small additions for which exemptions should not have been granted. In one case, SFWMD exempted the proposed activity due to its error calculating minimum thresholds as to the areas of the parcel and the impervious surface. In the other case, SFWMD exempted the proposed activity partly in reliance on a promised master drainage plan that was not later prepared. To issue operation permits for the existing systems on the 21.4- and 32.7-acre parcels would reward the owner and developer of the 65-acre parcel for noncompliance with the law and provide an incentive for similarly situated landowners and developers likewise to ignore the law. Before issuing operation permits on systems that have received no comprehensive review and that have been added piecemeal over the years, SFWMD must evaluate the surface water systems on the entire 65-acre parcel to determine whether they meet all applicable criteria. The "as is, where is" unwritten policy has no applicability where there have been reports of flooding. If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6, it must be prepared to identify and explain which criteria are waived and why. Water Quality Basis of Review 5.2.2 provides that projects that are zoned commercial or industrial, such as the present one, must provide one-half inch of "dry" detention or retention pretreatment, unless reasonable assurances are provided "that hazardous materials will not enter the project's surface water management system." There is no existing or proposed dry detention on the 65 acres. The existing development includes the Sheriff's Office Aviation Department, which serves as a heliport. The fueling and maintenance of helicopters means that contaminants may enter the stormwater draining off the site. The functioning of the surface water system on this site is therefore of particular importance. There also may be more reason to question the functioning of the surface water system on this site. It is south of the Lee County Stockade, where flooding has been reported. The heliport site has also been the subject of more elaborate drainage improvements, such as the location of a small retention pond near the Stockade boundary and a pump, the latter of which has since been abandoned. The existing system on the 21.4-acre parcel, as well as the existing and proposed systems on the remainder of the 65 acres, require dry pretreatment for reasons apart from the presence of the heliport. The materials likely to be used with the existing and proposed developments are similar to those found on residential sites. SFWMD and DMS contend that there is therefore no need to require dry pretreatment as to these areas. However, the existing and intended institutional uses, such as jails and bootcamps, represent an intensity of use that exceeds the use typical in areas zoned residential. This increased intensity implies the presence of typical residential contaminants, such as petroleum-based products or cleaning solvents, but in greater volumes or concentrations, if not also, in the case of solvents, different compositions. The lease addresses potential liability for released petroleum. In the absence of a showing that such hazardous materials are prevented from entering the runoff, SFWMD must require dry pretreatment for the systems occupying the entire 65-acre parcel. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quality criteria or that the proposed system will satisfy applicable water quality criteria. Water Quantity The 65-acre parcel adjoins Ortiz Avenue on the west and property owned by Petitioners on the east and south that is undeveloped except for a borrow pit some distance from the 65- acre parcel. The parcel is roughly 1000 feet east- west and 2700 feet north-south. The proposed halfway house is at the north end of the parcel. The halfway house is situated between a proposed detention pond on the west and a recreation field on the east. A paved road divides the halfway house from the rest of the 65- acre parcel. South of the road are the Lee County Stockade on the west, which abuts Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates these two sites. The berm runs from the road along the west shore of the twice- enlarged 1.2- acre retention pond and the west boundary of the Price Halfway House, which is south of the Juvenile Detention Center. To the west of the berm, south of the Lee County Stockade, is the Sheriff's Office Aviation Department or heliport facility, which abuts Ortiz Avenue. South of the Aviation Department is an outparcel used by the Florida Department of Corrections that also abuts Ortiz Avenue. East of the outparcel is the proposed halfway house with a proposed detention pond west of the halfway house and south of the outparcel. The Emergency Operations Center, which abuts Ortiz Avenue, is south of the detention pond and surrounded on three sides by the 32.7 acres to be left undisturbed at this time. There are perimeter berms around all of the parcels except for the Juvenile Detention Center and Price Halfway House, which are served by a single berm, and the Emergency Operations Center, which appears not to be bermed. The prevailing natural drainage is not pronounced either by direction or volume because the land is nearly level. The natural direction of drainage is to the south and west and remains so on Petitioners' land to the east and south and the undisturbed 32.7 acres to the south. The variety of drainage directions within the remainder of the 65- acre parcel reflects the extent to which berms, swales, ponds, pumps, roads, buildings, parking areas, and other works have been added to the northerly parcels. Runoff reaching the northern boundary of the 65 acres will be diverted due west around the proposed detention pond to the swale running along the east side of Ortiz Avenue. Runoff from the recreation field and halfway house building and parking area drain into the proposed detention pond, which releases water through a gravity control device to the Ortiz Avenue swale. There appears to be a connection routing some runoff from the south side of the recreation field to the Juvenile Detention Center, where it travels west in a roadside swale to the Ortiz Avenue swale. A little less than half of the area of the Juvenile Detention Center site drains into perimeter swales along the north and east borders and then to the west before emptying into the Ortiz Avenue swale. The remainder of the Juvenile Detention Center drains into the retention pond. The same is true of the Price Halfway House. The Lee County Stockade drains to each of its borders where the water then runs west along the north or south border to the Ortiz Avenue swale. The southern half of the Lee County Stockade site drains into the small retention pond at the northwest corner of the Sheriff's Office Aviation Department. Most of the runoff from the heliport facility runs to the southwest corner of the parcel, which is the location of the abandoned pump. From there, the runoff continues to the Ortiz Avenue swale. Very little if any of the runoff from the heliport enters the small retention pond on the northwest corner of the parcel. The bootcamp drains into the detention pond, which then releases water by a gravity control structure into a portion of the undisturbed 32.7-acres before entering the Ortiz Avenue swale. The Emergency Operations Center site drains in all directions away from the building and parking area, eventually draining into the Ortiz Avenue swale. Stormwater discharge rates from the proposed halfway house and bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively. SFWMD and DMS contend that the excessive discharge from the bootcamp is acceptable because the gravity control device for the proposed detention pond is of the smallest size allowable, given the indisputable need to avoid clogging and ensuing upstream flooding. Initially, SFWMD approved the discharge rates for the halfway house and bootcamp because, when combined, they did not exceed the total allowable value. However, this approach was invalid for two reasons. First, the two sites contain entirely independent drainage systems separated by several hundred feet. Second, after correcting an initial understatement for the value for the halfway house, the actual total exceeds the maximum allowable total. SFWMD contends that the slight excess is acceptable because of the inability to use a smaller orifice in the gravity control structure. However, the discharge quantity easily could have been reduced by design alternatives, such as enlarging the detention pond, which is mostly surrounded by land that is to be left undisturbed. The ease with which the minimum-orifice problem could have been avoided rebuts the presumption contained in Basis of Review 7.2.A that excessive discharge quantities are presumably acceptable if due to the inability to use a smaller orifice. Also, SFWMD and DMS have failed to show that the effect of the excessive discharge quantities is negligible, so the exception in the SFWMD manual for negligible impacts is unavailable. Neither SFWMD nor DMS provided any reasonable assurance as to the quantity of discharge from the 21.4 acres. Rough estimates suggest it is more likely that the quantity of discharge may greatly exceed the allowable maximum. SFWMD must evaluate the water-quantity issues before issuing operation permits for the systems on the 21.4- and 32.7- acre parcels and a construction and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines that all water quantity criteria are met as to the existing systems, it may issue operation permits for the systems on the 21.4- and 32.7- acre parcels. Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to waive compliance with any or all quantity standards in reliance on Basis of Review 1.6, evaluate the effect of the waiver and explain the basis for the waiver. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quantity criteria or that the proposed system will satisfy applicable water quantity criteria. Impacts on Adjacent Lands Petitioners' property is impacted by the above- described drainage in two ways. First, Petitioners' property abutting the east side of Ortiz Avenue, south of the 65 acres, is especially vulnerable to flooding because the Ortiz Avenue swale is not a V-notch, but a half-V. The closed side of the swale prevents the water from running onto Ortiz Avenue. The open side of swale abuts Petitioners' property, so, if the swale's capacity is exceeded, stormwater will be released onto Petitioners' land. Second, perimeter berming along the east side of the 10.9- and 21.4- acre parcels will impede flow off the part of Petitioners' property located to the east of the 65 acres. A swale between the proposed halfway house and the Juvenile Detention Center will receive runoff from a small portion of Petitioners' property to the east and mostly north of the 65 acres. But there is no indication how much runoff from Petitioners' property can be so accommodated, how much runoff is impeded by the existing berm along the east side of the Juvenile Detention Center and Price Halfway House, and how much runoff will be impeded by the addition of new berms along the east side of the proposed halfway house and bootcamp. Basis of Review 6.8 requires that swales and dikes allow the passage of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b), Florida Administrative Code, requires that an applicant provide reasonable assurances that a surface water management system will not cause adverse water quality or quantity impacts on adjacent lands. Neither SFWMD nor DMS obtained topographical information for Petitioners' property, as required by the Basis of Review. Rough estimates suggest that the proposed project may require Petitioners' property to retain considerably more stormwater from the design storm event of 25 years, three days. DMS and SFWMD have thus failed to provide reasonable assurance that the proposed system would not have an adverse impact on Petitioners' upstream and downstream land.
Recommendation It is hereby RECOMMENDED that the South Florida Water Management District enter a final order denying the application of the Department of Management Services for all permits for the operation and construction and operation of surface water management systems on the 65-acre parcel. ENTERED on June 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on June 19, 1995. APPENDIX Rulings on Proposed Findings of Petitioners 1-18: adopted or adopted in substance. 19: rejected as subordinate. 20-21: adopted or adopted in substance. 22-24 (first sentence): rejected as irrelevant. 24 (remainder)-46: adopted or adopted in substance. 47-53: rejected as subordinate. 54-64 (first sentence): adopted or adopted in substance. 64 (second sentence)-66: rejected as subordinate. Rulings on Proposed Findings of Respondent SFWMD 1-10: adopted or adopted in substance. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as unnecessary. 13: adopted or adopted in substance. 14-15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence. 17 (except for last sentence): adopted or adopted in substance. 17 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 18-32 (first sentence): rejected as unnecessary. 32 (remainder): rejected as unsupported by the appropriate weight of the evidence. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence, except that the proposed ponds are wet detention. 35 (first sentence): adopted or adopted in substance. 35 (remainder): rejected as unsupported by the appropriate weight of the evidence. 36-45: rejected as unnecessary. 46-47: rejected as unsupported by the appropriate weight of the evidence. 48-50 (second sentence): adopted or adopted in substance. 50 (remainder): rejected as unsupported by the appropriate weight of the evidence. 51-52, 55-57 (first sentence), and 58: adopted or adopted in substance, although insufficient water quality treatment. 53: adopted or adopted in substance. 54: rejected as unsupported by the appropriate weight of the evidence. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance, except after "therefore." None of remainder logically follows from what is said in 1.6. 61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as subordinate, unsupported by the appropriate weight of the evidence, and irrelevant. 65: rejected as subordinate. 66: rejected as irrelevant. The burden is on the applicant and SFWMD, if it wishes to issue the permits, to provide reasonable assurances as to the adverse impact of the drainage systems. 67-68: rejected as subordinate. 69: rejected as unsupported by the appropriate weight of the evidence. 70: rejected as unsupported by the appropriate weight of the evidence. 71: rejected as repetitious. 72: rejected as irrelevant, except for past report of flooding, which is rejected as repetitious. 73: rejected as repetitious. 74: rejected as irrelevant and subordinate. 75 (first three sentences): adopted or adopted in substance. 75 (remainder): rejected as unsupported by the appropriate weight of the evidence. 1 and 2: rejected as irrelevant insofar as the same result is reached with or without the permit modifications. Rulings on Proposed Findings of Respondent DMS 1-4: adopted or adopted in substance. 5: rejected as subordinate. 6: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 8: rejected as subordinate. 9: adopted or adopted in substance, except that the excessive discharge was not "caused" by the minimum-sized orifice, only defended on that basis. 10: adopted or adopted in substance. 11-12: rejected as subordinate. 13: rejected as irrelevant. 14: adopted or adopted in substance. 15: adopted or adopted in substance, except for implication that no flooding problems existed. 16: rejected as recitation of evidence. 17: rejected as subordinate. 18: rejected as irrelevant. 19: adopted or adopted in substance, to the extent that separateness of systems is relevant. 20: rejected as subordinate. 21: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23-30: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence, based on the present record. 33: rejected as unsupported by the appropriate weight of the evidence and relevance. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416 Russell P. Schropp Harold N. Hume, Jr. Henderson Franklin P.O. Box 280 Ft. Myers, Fl 33902 O. Earl Black, Jr. Stephen S. Mathues Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, FL 32399-0950 Vincent J. Chen Toni M. Leidy South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401
Findings Of Fact In 1984, the South Florida Water Management District (SFWMD) issued surface water management permit number 48-00201-5 for a 515 acre project, Isleworth Golf and Country Club, located in southwest Orange County. The permit was issued to the developer, Isleworth Partners. Sometime after the permit was issued and the system was constructed, nitrate concentrations were detected in holding ponds BE-15 and 16. District staff speculated that the shallow ground water table was contaminated with residual nitrogen left from nutrient applications to a citrus grove previously on the site. They were concerned that the high nitrate ground water was seeping into the storm water storage ponds and would eventually be discharged into adjoining Lake Bessie, thereby affecting the water quality of the lake. Lake Bessie, along with other lakes in the region, was also experiencing rising levels. On March 24, 1988, Isleworth Partners submitted to the SFWMD its application number 03248-G, to modify the existing surface water management permit, to help prevent the water quality problems from occurring in Lake Bessie, as described above, and to ameliorate and mitigate against increased lake levels in Lake Bessie. It was not intended to provide flood protection for Lake Bessie. The solution proposed in the modification request, as well as in water use permit applications processed at the same time, was to retain substantially more water in storage ponds BE-15 and 16, and to recycle some of the water from those ponds for use in irrigating the golf course. There were no objections to the water use modifications which were processed with the surface water management permit modification, and the water use modifications were approved by the SFWMD governing board in June 1988. As they affect ponds BE-15 and 16, the water use modifications include pumping the ponds down to a new control level of 97 feet NGVD and using that water to irrigate the golf course. This process has already been implemented with beneficial results: the nitrate concentrations in the ponds have been reduced. The surface water management modification which is the subject of the application at issue is to raise the weir structure from 101.6 to 103 feet NGVD in pond BE-15 to provide complete retention of a 10 year/24 hour storm event without discharge to Lake Bessie from the pond. The under drain system at Pond BE-15 will also be plugged to prevent the existing permitted bleed down of the pond waters into Lake Bessie. This structural modification involves simple construction work and can be completed in one or two days. Ponds BE-15 and 16 are currently connected by an equalizer pipe, and will remain so. Under the modifications the ponds will be maintained (control elevation) at 97 feet NGVD through the use of existing permitted pumps. The maximum elevation of the ponds will be raised from 101.6 feet to 103 feet NGVD by the alteration of the weir. This means the waters in the ponds would have to top 103 feet to overflow and discharge, by way of an existing pipe, to the swales along Lake Bessie and thence into the lake. A 10 year/24 hour storm event is the amount of rainfall that will statistically occur in a 24-hour period once every ten years, or ten times in a 100-year period. The amount of rainfall in a 10 year/24 hour storm event is roughly seven and a half inches. The modification proposed by Isleworth Partners is intended to retain the runoff from that storm. Currently, under the system as permitted, only the first inch of runoff must be retained. This is about 2.4 inches of rainfall or approximately a 3-year/1-hour storm event. Substantially more water will be retained in Ponds BE-15 and 16 under the proposed modification. The staff of SFWMD recommended that the application be granted, with twelve standard limiting conditions and eight special conditions, including the following: * * * The permittee shall be responsible for the correction of any water quality problems that result from the construction or operation of the surface water management system. The district reserves the right to require that water quality treatment methods be incorporated into the drainage system if such measures are shown to be necessary. * * * (Isleworth Exhibit #3, p. 6) John Robertson, Donald Greer and Robert Londeree reside on Lake Bessie. John Robertson and Donald Greer are members and officers of a nonprofit corporation, the Petitioner in this case, Friends of the Lakes, Inc. These residents are concerned that the level of Lake Bessie has risen in the last few years and that it is becoming polluted. Long standing docks which had been primarily dry are now frequently under water. The residents have observed milky or greenish yellow water discharging from pipes from the Isleworth development. These residents, who are not parties to the proceeding, concede that, if the modification works as intended, the system will be improved and the impact to Lake Bessie Will be lessened. Petitioner, Friends of the Lakes, Inc., questions the reliability of the pumping system to maintain the 97.0 foot control elevation. If the ponds are maintained at a control level of 97.0 feet, the 10 year/24 hour storm water will be retained. If, however, through a series of smaller events, the level is higher than 97.0 feet, less capacity will exist, and the water will discharge sooner to Lake Bessie. The current permitted pump operates at 375 gallons a minute. Depending on whether the pump is operated continuously or part-time, it would take from four to twenty days to pump down the pond from a maximum 103 feet to the 97 foot level. The District found the pumping system to be acceptable at Isleworth because the development has a full-time maintenance staff of 35 people, of whom three work on the pumping system. A maintenance supervisor checks the pumps daily, and the developer has an agreement with a pump company to replace the pump, if needed, within four to six hours. The system is considered reliable and the increased pond holding capacity will insure that more water will be retained than under the existing permitted system. Stephen Miller is the professional engineer whose firm prepared the application for modification and the original application for the surface water management permit. He is aware of some changes in the project as constructed which differ from his design for the original system. These changes relate specifically to grading on the golf course and not, as suggested by Petitioner, to the operation of ponds BE-15 and 16. Stephen Miller believes that the modifications will do exactly what they are proposed to do. The application for the modifications took into account the existing conditions which differ from the permitted construction plans. Ronald R. Potts testified for Petitioner as an expert in geology and surface and ground water hydrology. He agrees that the application for modification meets all requirements of the SFWMD with the exception of a single standard condition: * * * 3. The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition, the permittee shall obtain all necessary federal, state, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit (Isleworth Exhibit #3, P. 6.) The district staff report recommending approval for the modification request was sent to Orange County for its review and comment. Orange County made no objections. Within Orange County it is the engineering department which is responsible for the implementation and interpretation of the Orange County subdivision regulations as they apply to storm water management. The SFWMD does not attempt to enforce other agencies' requirements. The Orange County Engineer, George Cole, determined that neither section 10.1.2 nor section 10.4.4(D) of the Orange County Subdivision Regulations were applicable to the modification proposed by Isleworth. Section 10.1.2 requires that recharge to the Floridan Aquifer, where soils are compatible, shall be accomplished by providing for retention of the total run off generated by a 25 year frequency, 24 hour duration storm event from the developed site. Section 10.4.4(D) of the Orange County Subdivision Regulations requires that a pond design detain a 100 year storm event when discharge into a lake without a positive outfall is proposed. When the County first approved Isleworth's Planned Development, it set a specific requirement that the storm water management system retain the first inch of runoff and detain the difference between pre-development and post- development discharge for a 25 year/24 hour storm. "Retention" of storm water means that the water must be held on site and disposed of by some means other than discharge. "Detention" requires only that water be held back for a period of time before discharge. The Isleworth property is not located in a prime recharge area, as under its soils is a highly impermeable lens, commonly called "hardpan." Lake Bessie has a positive outfall, a pipe connecting Lake Bessie with nearby Lake Down. Although the pipe was plugged with debris for a period of years, it has been cleaned out and the potential exists for outfall from Lake Bessie in flood conditions. The County's 100 year/24 hour detention requirement would still allow the ponds to discharge more water to Lake Bessie than the proposed 10 year/24 hour retention design, and is, therefore, less restrictive. Lake Bessie presently is one of Florida's most pristine lakes with crystal clear water that is ideal for recreational purposes. The natural dynamic state of lakes is that over a period of time they evolve from oligotrophic, with clear water and a balanced system; to mesotrophic, with less water clarity, more nutrients, increased algae and less desirability for human use; to a eutrophic state, with even less clarity, choking vegetation, less fish and less pleasing appearance and utility. This occurs in a natural state as lakes fill in with decaying matter from the shore. Petitioner claims that discharge from Isleworth will hasten the death of the lake. Phillip Sacco testified for the Petitioner as an expert biologist and limnologist (one who studies fresh bodies of water). He performed a modeling analysis to determine the amount of phosphorus being discharged into Lake Bessie and he opined that the Isleworth development will cause Lake Bessie to change to a eutrophic state. A significant component of his analysis was his assumption that 920 acre-feet of water would be discharged into Lake Bessie as a result of the modification. (transcript pp. 557-558). The 920 acre feet is actually the total amount of water which enters Lake Bessie from the entire Lake Bessie basin, not just from the Isleworth property, and includes both surface water (2%) and ground water (98%). The analysis is discredited by the false assumption. Mr. Sacco also theorized that the interaction of nitrogen and phosphorus precipitated by the change in land use occasioned by the Isleworth development would produce deleterious effects on Lake Bessie's water quality: "Nitrogen is the dynamite; phosphorus is the fuse and the land use change of Isleworth is the match." The permit modification application at issue does not relate to a land use change. The change from orange groves to residential development occurred years ago and has already been permitted. In fact, the land change providing the ignition in Mr. Sacco's vivid metaphor is just as likely in the even earlier cultivation of the groves and use of nutrients in their production. The single result of the modification at issue will be less water being discharged into Lake Bessie than is currently permitted from the system, thus conserving the water quality present in the lake. The residents who testified are not parties to this proceeding. Although two of them established they are members and officers of Friends of the Lake, Inc., no evidence was produced regarding the corporation, its legal existence or purpose.
Recommendation Based on the above it is hereby RECOMMENDED: that a final order be issued granting the application for permit modification, and denying Isleworth Partners' request for costs and attorney's fees. DONE AND ENTERED this 17th of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of August, 1989. APPENDIX Case NO. 88-3056 The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS: 1-2. Adopted in part in paragraph 9. However, testimony on the dying trees was excluded as beyond the witnesses' expertise. 3-4. Adopted in part in paragraph 2, otherwise rejected as not based on competent evidenc. Adopted in paragraph 3. Adopted in part in paragraph 10, otherwise rejected as unsupported by the evidence. The pumps already exist and are permitted. Rejected as irrelevant Rejected as unnecessary Rejected as inconsistent with the evidence. Adopted in paragraph 12. Rejeceted as unsubstantiated by competent evidence; the proposed fact is also too vague and ambiguous to properly address. Rejected as unsupported by competent evidence. Rejected as irrelevant, unnecessary, or unsupported by competent evidence. 14-15. Rejected as unsupported by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence and irrelevant. Adopted in part in paragraph 16; the contribution by the development is rejected as unsupported by competent evidence. Rejected as unsupported by competent evidence. Addressed in paragraph 16. Rejected as contrary to the evidence. Rejected as irrelevant. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. 25-31. Rejected as irrelevant and unnecessary. Rejected as testimony summarized rather than findings of fact. Rejected as unecessary. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: ISLEWORTH PARTNERS Adopted in paragraph 1, except the finding regarding the existing system meeting district requirements is rejected as irrelevant. Adopted in substance in paragraphs 2 and 3. 3-4. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraph 7. Rejected as cumulative and unnecessary. Adopted in part in paragraph 9, otherwise rejected as unnecessary. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 12. Adopted in paragraph 13. Included in conclusion of law #6. Adopted in paragraph 13. 14-19. Adopted in substance in paragraphs 14 and 15. Rejected as unnecessary. Adopted in paragraph 16. 22-25. Adopted in part in paragraph 16, otherwise rejected as unnecessary. Adopted in part in paragraph 4, otherwise rejected as unnecessary. Rejected as unnecessary. 28-31. Adopted in part in paragraph 9, otherwise rejected as unnecessary. 32. Adopted in paragraph 18 and in conclusion of law #2. SOUTH FLORIDA WATER MANAGEMENT DISTRICT 1-2. Adopted in paragraph 3 and 4. Adopted in paragraph 5. Adopted in paragraph 7. 5-6. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 13. 9-10. Adopted in paragraph 14. Adopted in paragraph 16, otherwise rejected as cumulative or unnecessary. Adopted in part in paragraph 14. COPIES FURNISHED: J. Alan Cox, Esquire Bogin, Munns & Munns 105 West 5th Avenue Tallahassee, FL 32303 Chris H. Bentley, Esquire W. Douglas Beason, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301 William Doster, Esquire Lowndes, Drosdick, Doster, et al., PA P.0. Box 2809 Orlando, FL 32802 James K. Sturgis, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
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.
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.
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
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
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
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
