Findings Of Fact Petitioner Ronald T. Hopwood is president of Last Resort Fish Camp Association, Inc. (hereafter "Association"), the owner of Big Pine Island located in Lake County, Florida. Big Pine Island consists of approximately 26 acres of land above the mean high watermark and 166 acres of submerged and transitional zone lands. The Association's property is more accurately described by the Department's exhibit III, Map C. Petitioner Milan M. Knor submitted to the Department a dredge and fill permit application, File No. 35-20062-4E, to dredge 7,350 plus-or-minus cubic yards of fill material waterward of the lien of ordinary high water and adjacent to the Petitioner's uplands (Department's Exhibit 12). It is proposed that the fill material or spoil be deposited on the landward side of a perimeter canal which presently exists along the southwest one-third of the island. When the project is complete, the canal will encircle the entire island, the fill material resulting therefrom will be deposited on the island side of the perimeter canal below a 59.5-foot elevation (Department's Exhibit III, Map A). During the dredging, turbidity curtains would be utilized. As part of the project, Petitioners propose to install two (2) 42-inch diameter culverts at the east and west ends of a causeway which connects Big Pine Island to the mainland (Department's Exhibit III, Map B). The purposes of the proposed project are to improve the water quality of the adjacent canals and wetlands, provide fire protection, reduce algae blooms, and stabilize bottom sediments (Petitioners' Exhibit A, Department's Exhibit 1). The elevation of 59.5 feet above mean sea level was established by the St. John's River Water Management District as the ordinary high water elevation of Lake Griffin. The desirable levels of Lake Griffin vary between 58.07 and 59.38 feet. A dredge and fill permit was issued fro this project by the St. John's River Water Management District. In its final order granting the permit, the Governing Board of the District found, inter alia, that the water quality of the district would not be significantly diminished by the channelization of the marsh, that the new culverts would increase the rate of flow and the flushing of the marsh by providing increased northerly access for the water flow, that the excavation would enhance navigability and flow through the interior canal, and that the channelization would promote fire protection. The Board believed that the installation of the culvers ". . . will provide a positive benefit to the marshlands by correcting the prior damming effect of the causeway " (Petitioner's Exhibit D). The permit was issued by the Governing Board over the recommendation of its staff to deny the permit (Department's Exhibit 16). On July 26, 1979, Mr. James Morgan, a filed inspector with the Department, conducted an on-site field inspection of the proposed project. Mr. Morgan complied an appraisal report, Department's Exhibit 11, which evaluated the feasibility of extending the existing 1,200-foot canal by approximately 3,000 feet. Mr. Morgan found that a portion of the area to be excavated, approximately 600 feet, was previously cleared and vegetated by arrowhead (Sagittaria, Sp.), paragrass (Panicum purpurascens), bloodroot (Lacnanthes caroliniana) and sawgrass. 1/ Standing water was present in portions of the previously cleared area. The remaining 2,400 feet were in a natural state, dominated by willows (Tudwigia peruviana), wax myrtles (Myrica ceriferia), arrowhead and sawgrass. Surface waters of the Oklawaha River and Lake Griffin were present in part of this area; however, at the time of the field evaluation, Lake Griffin's surface waters were depressed by approximately six (6) inches below its established ordinary high water elevation. Raising the lake's elevation to its high water elevation, 59.5 feet, would result in the entire project site being inundated with surface waters. Dip net samples yielded organisms which constitute the lowest levels of an aquatic food chain including amphipods, dragonfly naiads, diptera larvae and mosquito fish. Mr. Morgan's report concluded that ". . . [d]ue to the severity of the anticipated impact of the proposed canal construction, no environmentally acceptable modification is available other than to permit the system to function naturally. . . ." This conclusion was based on the following negative aspects of the project. The collecting and storing of organic materials in the canal which would reduce the dissolved oxygen level during biodegradation to lethal levels for fish and other aquatic organisms; The physical alteration and elimination of a natural wetland community; The increase in turbidity during excavation; and The placement of spoil below the controlled elevation of Lake Griffin which would reduce the lake and river flood storage capacity as well as the area capable of supporting healthy aquatic plant and animal life. It was recommended that the proposed culverts be installed and that one canal- front lot be utilized as a common lot for all property owners, thereby providing open water access to all property owners. Lake Griffin is presently in a highly eutrophic stated caused by large amounts of algae growth and weeds in the water column. Agricultural farming, municipal sewage treatment plants, and citrus processing plants are among the sources of nutrients causing the high algae growth. The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level buildup in the system. By increasing the water flow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved. The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter similar to the human kidney by filtering deleterious substances from the surface water. Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklawaha chain of lakes by a series of control structures. This "backwater" effect, which is caused by movement in the Oklawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved. A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and the completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water lever maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of an existing berm. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two- culvert system proposed by the Petitioners would have a cosmetic effect and not significantly improve the natural water flow between the canals. If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself. The proposed filling of the island which is to occur below the 59.5- foot elevation will reduce the river's flood storage capacity and the area capable of supporting plan and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of low lying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose. Petitioners have not been denied the use of their property either by the Department's denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.
Recommendation Therefore, it is recommended that the Department issue a permit to Petitioners to complete construction of a perimeter canal surrounding Big Pine Island subject to the following conditions: That the applicants install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway. The number and size of the culverts or other structures will be determined by the Department. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below 59.5 feet in elevation. That the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process. DONE AND ORDERED this 25th day of August 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August 1980.
The Issue The issue to be determined in these consolidated cases is whether proposed Florida Administrative Code Rule 62-42.300 is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties agree and the Administrative Law Judge has determined that there exists no genuine issue as to any material fact. In the December 4, 2014 SERC addendum, the Department described the changes to the proposed rule as follows: The Notice of Change filed on November 7, 2014 does not change the proposed minimum flows or the recovery strategy included in the proposed rules. The Notice of Change merely adds the existing technical information that the Administrative Law Judge found missing in the original rule text, which results in the proposed rule being found by the Judge to be vague. Specifically, these changes include: Adding the period of record used to establish the baseline flows in the Lower Santa Fe and Ichetucknee Rivers and subsequently used to develop the proposed minimum flows, and, Adding the method used for filling the data gaps in the baseline flow record for the Ichetucknee River. The Final Order in Still-I determined that the proposed minimum flows were vague because they did not include a period of record (of water flow data) to be used with the flow duration frequencies. Flow duration frequencies are percentages of time that a particular amount of flow (in cubic feet per second) is equaled or exceeded, which can vary depending on the period of record that is used. The proposed rule now describes the period of record that was used to derive the minimum flows. Petitioners contend that the rule is still vague because the rule does not identify the period of record that will be used in the future to determine whether the minimum flows are being achieved. Petitioners expressed concern that Suwannee River Water Management District might use a scientifically unsound period of record to determine that the MFL waterbodies are no longer “in recovery.” Neither the Department nor Suwannee River Water Management District identified in Still-I or in this proceeding the period of record that will be used to determine whether the minimum flows have been achieved. However, the Recovery Strategy for the MFL waterbodies is in its first phase. The rule contemplates that the MFL waterbodies will remain in recovery at least until completion of the North Florida Southeast Georgia Regional Groundwater Flow Model in 2019 and the MFLs and the Recovery Plan are re-evaluated with the model as part of phase See proposed Fla. Admin. Code R. 62-42.300(1)(d). This interpretation was confirmed by the Department and the District at the hearing on the motions for summary final order. The Supplemental Regulatory Measures (which are unchanged) do not require applicants for consumptive use permits to determine or show how a proposed withdrawal of water will affect the flow duration frequencies set forth in the rule. The period of record to be used in determining whether the minimum flows are achieved is not used in the permitting process.
Findings Of Fact Oliver DeWitt and Donald F. Richters, employees of the Southwest Florida Water Management District, were called, testified, and identified Composite Exhibit 1, the staff record of this application. Frank applied for a permit after the fact to construct a bulkhead within the mean annual floodplain of Lake Eustis. The investigation clearly revealed that fill had been placed behind a bulkhead built in Lake Eustis. Referring to the drawing marked "A" attached to the application found in Exhibit 1, the area marked in blue by the witnesses is the area filled and bulkheaded by the applicant. The applicant did not appear or present evidence to support its application.
Recommendation The Hearing Officer having considered the law and the facts would recommend denial of the application. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFMD Irene T. Frank Route 2, Box 55 Tavares, Florida 32778
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a final order finding that the proposed storm water discharge from the Fairfield Village site be determined to have no significant impact on the water quality of the state of Florida. It is further RECOMMENDED that the petition of the Concerned Citizens of West Escambia County, Florida, be dismissed for failure to establish by a preponderance of the evidence that its substantial interests will be adversely affected by the proposed discharge. DONE AND ENTERED this 23rd day of December 1980 in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December 1980.
The Issue Whether Michael Chbat's 2008 application for a Wetland Resource Permit (WRP) to construct a culvert extension across his property in Walton County, Florida, should be approved?
Findings Of Fact La Grange Bayou Estates La Grange Bayou Estates is a residential subdivision in Freeport, Walton County, Florida. The subdivision lies to the north of the shoreline of Choctawhatchee Bay. It can be viewed as divided roughly in half between bayfront lots south of an east-west road that transects the subdivision and lots that are north of the road. The subdivision is platted and the plat is in the public records of Walton County. Filed with the Clerk of the Circuit Court in and for Walton County, Florida, on September 15, 1982, the plat ("the 1982 Plat") shows 29 residential lots in the subdivision as of that date. See Petitioner's Ex. 6. Lots 1 through 16, according to the 1982 Plat, are the bayfront lots, south of a 40-foot wide road designated as a private road in the plat. That road is now known as Alden Lane. Wetlands over which the Department has jurisdiction ("jurisdictional wetlands") comprise much of the southern portion of bayfront lots and the drainage easement. Among the bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot 8 which belongs to Mr. Sheehey. A 50-foot easement lies between Lot 9 and Lot 8 and is described more fully below. The presence of jurisdictional wetlands on Mr. Chbat's lot over which he hopes to install the culvert extension requires that he obtain a WRP. To the north of Alden Lane are lots numbered by the 1982 Plat as 17 through 29. The lots are served by Alden Lane and, in what is roughly the northeast quadrant of the subdivision, by two other roads. One of the roads is shown on the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial photograph introduced into evidence by Chbat designates the road "unnamed." See Chbat Ex. 5. The other is designated as a "graded county road," on the 1982 Plat. By 2006, it had come to be known as Beatrice Point Road. Id. Beatrice Point Road transects a pond that runs roughly 340 feet (excluding about 30 feet of roadway) in a northeasterly direction from Alden Lane to the southern edge of an area north of the subdivision shown on the 1982 Plat to be un-platted. The pond is most likely the result of a "borrow pit" dug in order to obtain fill for the construction of the roads when the subdivision was initially developed. The southern boundary of the pond lies along approximately 140 feet of Alden Lane's northern edge. The pond is across the street from Lots 9, 10 and 11 of the subdivision. The pond is also not far northeast of the 50-foot easement (the "Drainage Easement") between Lots 9 and 8. The Drainage Easement The Drainage Easement is just to the west of Lot 9. It is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id. The 50-foot wide Drainage Easement runs the length of the western boundary of Lot 9 and the length of the eastern boundary of Lot 8. The northeast corner of the Drainage Easement is approximately 30 feet from the southwest corner of the pond separated from the pond by the roadway of Alden Lane. The eastern boundary of the Drainage Easement is 226.37 feet in length, or if taken to the middle of Alden Lane, 246.3 feet. The western boundary is 206.13 feet long or if taken to the middle of the road, 226.65 feet. The purpose of the Drainage Easement, as is evident from its denomination in this recommended order, is drainage. As Mr. Street definitively put it at hearing, it is "now and always has been intended to drain stormwater to the [B]ay." Tr. Vol. III at 179. Mr. Street's opinion of the function of the Drainage Easement is supported by drawings submitted by Mr. Chbat as part of the WRP application. The drawings show that the Drainage Easement's function is facilitated by three culverts north of the Easement (referred to during the hearing as "pipes") each of which is intended to direct stormwater at its point of discharge toward the Drainage Easement. See Chbat Ex. 1. One of the culverts ("the Drainage Ditch Culvert") serves a drainage ditch that is to the north of the Easement and Alden Lane. According to the drawings, the drainage ditch lies on the other side of the "un-named road" from the pond, that is, to the west of the pond, and is some 40-to-50 feet north of the Drainage Easement. The Drainage Ditch Culvert extends from the ditch to the southern half of Alden Lane from where it appears from the application's drawings that stormwater would be conveyed to the western side of the Drainage Easement along it's border with Lot 8 and on toward the Bay. In fact, it is a functioning culvert that "conveys water from a swale on the side of the road into the [D]rainage [E]asement." Tr. 64. Once in the Drainage Easement, according to the drawings, the water should flow into the Bay out of a "cut," id., that is labeled on the drawings as an "existing trench." See Chbat Ex. 1. The trench, however, has been filled in with sand by tidal activity or sediment deposited by stormwater or both. The trench has not been maintained, and it no longer exists. The other two culverts (the "Pond Culverts") lie east of the Drainage Ditch Culvert. They catch overflow from the pond caused by stormwater and convey it under and through Alden Lane toward the Drainage Easement. The westernmost Pond Culvert (the "Western Pond Culvert") appears to terminate in Alden Lane near its southern edge just north of the Easement. At the time of hearing, however, it was not functioning properly. "[I]t is full of sand and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west is clogged and it is not functioning." Tr. Vol. I at 64. It is also at an elevation that would keep it from serving drainage purposes in all but the most severe storm events. See Chbat Ex. 9 at 22. The other Pond Culvert, (the "Eastern Pond Culvert") terminates in the northwest corner of Lot 9 at the border between Lot 9 and the Drainage Easement about 10 feet southeast of the terminus of the Western Pond Culvert. The Eastern Pond Culvert is the culvert with which the Amended Permit is concerned, that is, it is the culvert to be extended by the permit. Calling it a "pipe," Mr. Street offered the following about the assistance the Eastern Pond Culvert offers in conveying stormwater into the Drainage Easement and down to the Bay: There is currently a pipe that discharges into that easement. There . . . was an attempt to place the water from the . . . pond into the easement. And the natural flow of water on this entire property from the road to the [B]ay is north to south. At some point, at least 2004, that drainage easement contained a conveyance at its southern end that would safely discharge stormwater to the [B]ay. Tr. Vol. III at 179-80. Petitioner Sheehey and Lot 8 Thomas Sheehey is the owner of Lot 8, where he has a residence in which he makes his home. He has lived in the residence approximately five years. During that time, Mr. Sheehey has fished in the Bay and enjoyed the use of his kayak and his waverunner on the Bay. He also enjoys "sitting down having a cup of coffee and looking at it," tr. vol. III at 151, as well as watching his neighbors fish. The recreational uses to which he puts the Bay is the reason he chose to purchase a bayfront lot in La Grange Bayou Estates. Over the period of time that he has resided on Lot 8, Mr. Sheehey has observed the effects of rain events on his lot and well as lots close to Lot 8. He has also taken pictures of his property and the near-by lots. Among the photographs were four taken after rain events or "after a wet period," tr. vol. III at 88, at some point in the last four years. The four photos were introduced as a composite exhibit, Petitioner's Ex. 2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey could not specify when the pictures were taken in the past four years other than that if a picture had a certain dock in it, then it was taken after January of 2009. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot looking toward the Bay. It shows an area of the lot under water separated from the Bay by a ridge. Petitioner's Ex. 2B is a picture taken from Lot 13 looking west across Lots 12, 11, 10, 9 "down through 8." Tr. Vol. III at 86. Much of what is photographed is among trees and vegetation emerging from water standing above the surface of the soil. Petitioner's Ex. 2C is a picture taken from Alden Lane looking south across Mr. Chbat's property. It shows a wide swath of water that extends from the road across most of the property to the Bay. The water is either in a swale or constitutes overflow outside the swale. The most recent of the four is Petitioner's Ex. 2D, which shows the dock referred to by Mr. Sheehey that was built in early 2009. It is a picture taken from Lot number 13 toward the west through Lots 12, 11, 10, 9. Like the others, it shows vegetation standing in water to the north of the Bay. Taken together, the four pictures in Petitioner's Exhibit 2 demonstrate that significant portions of the lots depicted are under water following sufficient amounts of recent rain. The four photographs that comprise Petitioner's Exhibit 2 are not the only photos taken by Mr. Sheehey that were introduced into evidence. Three other photographs of Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were admitted following testimony about them from a long-time observer of the flow of water from Alden Lane to the Bay. A Long-time Observer Thomas Eugene Cummins had lived in La Grange Estates "[t]wo months shy of 20 years," tr. vol. III at 7, at the time of his testimony. His house was the fourth to be constructed in the subdivision. Over the two decades of his residence, the pond between Alden Lane and the property north of the subdivision has been in existence. Consistent with the drawings submitted to DEP as part of the application, when asked where the pond overflows today, Mr. Cummins answered "it drains under Alden Lane on to Mr. Chbat's lot." Tr. Vol. III at 8. Asked by Mr. Chesser at hearing, "When the water comes out of the pond, is it possible to know where it spreads?"1/ Mr. Cummins testified: On really heavy rains, I have watched the normal color of the pond change from its dark blackish gray color into the reddish color that the clay has washed down into it, flow under Alden Lane and on to Mr. Chbat's lot, and then proceed west through the wetland on lots eight, seven, six, and my five, and turn reddish color even in my lot. Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red color" of the stormwater: red clay introduced to La Grange Estates by the County half a decade earlier. Mr. Cummins testified: Beatrice Point Road, which is the road that runs over the pond, about five years ago the county did some repair on the road and actually put red clay in certain spots to even it out. Tr. Vol. III at 9. Prior to the county's work on the road referred-to by Mr. Cummins, there had been no red clay in the neighborhood. Alden Way, for example, has no red clay. It is a road composed of shell. The only red clay in the subdivision is that which is on Beatrice Point Road. The water that runs onto Mr. Cummins' lot following a heavy rain rises to as much as 12 inches.2/ The water rises as high as it does because it is held back by a naturally-occurring land formation between the Bay and Mr. Cummins property. This geo-formation was referred-to at hearing as the ridge line or the ridge. The Ridge The Ridge was described by Mr. Cummins as a vegetated mass of earth that most of the time, even in heavy rains, sits above the water that collects on the bayfront lots of La Grange Estates. The Ridge prevents a substantial amount of stormwater runoff from entering the Bay from the wetlands on the southern portion of the subdivision's bayfront lots. For that reason, the ridge is called "our upland,3/" tr. vol. III at 13, according to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in width "anywhere between 10 feet . . . up toward Mr. Chbat's lot, down to [Mr. Cummins'] lot where its around 30 or 40 feet [wide.]" Id. (It may extend, in fact, across all of the bayfront lots.) The ridge meanders not far from the shoreline. Id. In some places it is as narrow as five feet. The height of the ridge varies as well from as low as one foot to as high as two and half feet. Mr. Street also testified about the Ridge, referring to it in his testimony as a "ridge line": Now, there is a ridge line, and there's been a lot of testimony about this ridge line, that it exists across all of the lots. My testimony was, essentially, related to the review that I did, which was primarily associated with lots eight and nine, and the drainage easement between them. And from what I can tell, the elevation of that ridge line is give or take three. Elevation three, not a height of three. An elevation of three. It could be lower, and perhaps, is higher. And its subject to the vagaries of a number of factors, flow of stormwater, wave action, tidal influence, and the like. And these accretions and depositions of sand over time change that ridge line. And sometimes, it opens up. And sometimes it may not have a natural opening, depending on where you are along that entire stretch of beach. * * * [T]o the extent there is an opening in that ridge line, water will flow naturally to the bay. Tr. Vol. III at 180-181. An "east west flow of water," tr. vol. III at 181, along the bayfront lots, that is, a flow of water either in an easterly direction or a westerly one is contrary to the flow from Alden Lane north of the lots to the Bay south of the lots. Whether flowing east or west, the water in the southern portions of the bayfront lots is "controlled by the ridge line." Id. In other words, stormwater that flows from north to south across the bayfront lots, including Mr. Chbat's and the Drainage Easement, is going to collect and begin to flow from east to west or west to east at some point north of the Ridge before it drains into the Bay. The only exception to east-west flow, as made clear by Mr. Street, is when and if there is an opening in the Ridge that allows the water otherwise held back by the Ridge to flow southward into the Bay. The east-west flow of the water along the Ridge was described at hearing as "unnatural." Id. In fact, it is not un-natural. The Ridge is the cause of the east-west flow and, as Mr. Street testified, the Ridge is the result of natural processes such as tidal influence, wave action, accretion and deposition of sand.4/ The Ridge is shown in Petitioner's Exhibit 7A,5/ another photograph taken by Mr. Sheehey. The ridge as shown in the picture is well vegetated and above water to its north and higher than the Bay to its south. It is quite clear that if there is no opening in the ridge to the Bay, stormwater north of the ridge is forced to flow in east-west directions and is prevented from flowing into the Bay. Petitioners' Exhibit 7B is a photograph of the southern terminus of a swale (see paragraphs 40 - 49, below) on Mr. Chbat's property. It shows the swale cut through the Ridge. Water, however, does not appear to be running from the end of the swale into the bay. It appears that the end of the swale is a few feet from the Bay separated by a narrow sandy area on the shore. Nonetheless, the photograph shows that there is potential for stormwater to flow from the swale when the swale has more water in it. Petitioner's Exhibit 7C is a picture of the pond6/ across the street from Mr. Chbat's Lot 9. Mr. Chbat and Lot 9 Michael Chbat is the owner of Lot 9. He purchased the lot "[t]o build a house on it." Tr. Vol. I at 22. Because he has family close by (in Fort Walton Beach), Mr. Chbat expects to use a house built on the lot for weekend visits. His ultimate aspiration is to live in a house on Lot 9 after he retires from his position as a construction engineer with the City of Tallahassee. At hearing, Mr. Chbat described Lot 9 on the day he bought it: "the lot was overgrown. It drained from north to south. It had water standing on it. And it had a pipe [the Eastern Pond Culvert] on the northwest corner discharging." Tr. Vol. I at 23. He also described the state of the lot at the time of hearing. The Eastern Pond Culvert on the northwest corner was still there. The lot had been cleared to some extent to rid it of invasive species. Overgrown vegetation was trimmed or cleared to make room for a driveway permitted by the Department and "a parking pad in the front area of it, as well as an access pad in the uplands." Id. A dock had also been constructed from the property into the Bay. The most significant difference between the lot at the time of purchase and the lot at the time of hearing for purposes of this proceeding is that the lot now has a swale (the Swale) that runs from the point of discharge of the Eastern Pond Culvert "all of the way to the bay area." Id. The Swale The Swale was put in sometime after March 20, 2007, as the result of a Settlement Agreement fully executed on that date "By and Between Michael Chbat and Thomas L. Sheehey." Petitioner's Ex. 10. The Settlement Agreement followed events that commenced in 2004 when Mr. Chbat filed an application (the "2004 Application") with DEP for a WRP primarily to construct a house and a boardwalk leading from the house on Lot 9 to a dock in the Bay. The 2004 Application also proposed the extension of the Eastern Pond Culvert with a "pipe" along the western boundary of Chbat's property in a manner substantially similar to the culvert extension allowed by the Amended Permit that is the subject of this proceeding. On October 28, 2005, DEP proposed that the 2004 Application be granted. The permit (the "Proposed Original Permit") was assigned No. 66-0235320-001-DF. See Petitioner's Ex. 10, at 2. The Proposed Original Permit was challenged by Mr. Sheehey when he "filed a Petition for Administrative Hearing contesting certain action authorized under the [Proposed Original] Permit . . . specifically the relocation of a drainage pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the Settlement Agreement that they had "determined that it is in their best interests to settle this matter amicably pursuant to the terms hereafter". Id. Among the terms is that Chbat would file an Amended Application. See id. The agreed-to amendment to the 2004 Application was attached to the Settlement Agreement as Exhibit "A," a drawing of a "Drainage Swale Plan," produced by Genesis Group for Mr. Chbat. The drawing depicts a swale that runs from the discharge point of the Eastern Pond Culvert nearly the full length of the western boundary of Lot 9 to the Bay. See Exhibit "A" to Petitioner's Ex. 10. The Swale was designed to take the place of the 2004 Application's proposal for a "pipe"7/ attached to the point of the discharge from the Eastern Pond Culvert. The Settlement Agreement received the support of DEP because the Department believed that a swale would assist in improving the quality of the stormwater discharged to the Bay over the untreated discharge from the end of the "pipe." Pursuant to the terms of the Settlement Agreement the 2004 Application was amended. The Department amended the Proposed Original Permit accordingly and final agency action was taken with the issuance of a permit to Mr. Chbat (the "Final Original Permit") found in DEP Permit File No. 66-0235320-001- DF. Installation of the Swale The Swale was installed, but it did not work as intended. The result of the Swale's installation was more water on the lot rather than less. Mr. Chbat described the after-effects of the Swale: "it started bringing more water to the lot . . .". Tr. Vol. I at 31. The increased amount of water is the result of several factors, one of which is tidal influence: the tide from the Bay pushes water into the Swale. "[A]bout halfway on the swale . . . that water from the bay was meeting the water from the pipe . . .". Id. The water from the Bay tide and the stormwater conveyed by the Swale would meet at "about the middle of the span of the swale." Id. The result was "a lot more water," id., on the lot. Mr. Thomason confirmed Mr. Chbat's assessment that the reason the Swale did not function as effectively as necessary is tidal flow onto Lot 9 from the Bay particularly from high winds. But tidal flow onto Lot 9 and the interruption in the discharge of stormwater through the Swale are not the only problems. There is also a maintenance factor that accompanies tidal flow: sand deposition. Mr. Thomason elaborated: "[D]uring storm events or [just normal] wave action in the bay, sand is brought back up on to . . . the sandy area at the end of [Lot 9] next to the [Bay.]"8/ Tr. Vol. I at 62. The influx of sand onto Lot 9 is not just a problem for adequate functioning of the Swale. The Drainage Easement has "the same problem." Id. Both the Swale and the Drainage Easement are plagued by deposition of sand pushed landward by normal tidal influences and storm events. Maintenance of the Swale and the Drainage Easement, therefore, would assist the drainage of stormwater into the Bay. The tidal influence and maintenance issues that Mr. Chbat encountered with the Swale led him to apply for a different and new permit. That application was filed in 2008. The 2008 Application Mr. Chbat filed a "Joint Application for Works in the Waters of Florida" with DEP on August 1, 2008 (the "2008 Application"). See Chbat Exhibit 1. The work to be approved was similar to the work originally proposed in the 2004 Application in that both applications proposed installation of a "pipe" to be fixed to the discharge point of the Eastern Pond Culvert that would run along the western boundary of Lot 9 toward the Bay. A description of the work is contained in Section 10 of the 2008 Application: "Extension of an existing stormwater pipe within a private lot approximately 150 feet. The slope for the proposed pipe extension will be at minimum so that stormwater will be treated further, and minimizing erosion." Chbat Ex. 1 at 3. After the filing of the 2008 Application, Mr. Chbat learned that Mr. Sheehey objected to the newest Chbat proposal because he believed 150 feet is not lengthy enough to clear the Ridge. See Chbat Exhibit 2. In order to cure the objection, Mr. Chbat proposed a modification to the 2008 Application. He attached a "sealed and signed drawing," id., to a letter dated September 18, 2008, that he submitted to DEP. The drawing shows the extension to be 177 feet, 27 feet more than initially proposed by the 2008 Application. The additional 27 feet was intended to ensure that the discharge would be directly into the Bay in order to "eliminate any possible run-off impact to adjacent properties." Id. The modification was accepted by DEP." See exhibit number 19/ attached to the Amended Permit, Chbat Exhibit 4. There was conflicting evidence in the proceeding on whether the outfall from a culvert extension of 177 feet will be bayward of the Ridge. The issue was put to rest by Mr. Street’s testimony in rebuttal at the hearing. See Tr. Vol. III at 194 and 203-4. His testimony establishes that the point of discharge at the end of the culvert extension will clear the Ridge so that the discharge will be directly into the Bay. The Mound The culvert extension is designed at an elevation and with cover (presumably sod). The extension runs through jurisdictional wetlands and segments them. It does not, however, isolate any portion of the wetlands. The wetlands on Mr. Chbat's property and those to the immediate east and west of it, therefore, will retain their status as jurisdictional wetlands should the extension be installed. With its sod cover, the culvert extension will be a mini-berm (or a "mound" as Mr. Street called it) at an elevation of 17 to 18 inches above grade. Water that pools to its west will no longer be able to flow eastward of the mound (except rarely under the most extreme weather events.) Conversely, water that collects to its east will no longer be able to flow westward of the extension. It would have to be a severe storm event for water to rise above the mound. Mr. Chbat has never seen water rise to 18 inches above grade and Mr. Cummins testified the highest water ever gets on his property is roughly 12 inches. The Department approved the 2008 Application as modified to lengthen the extension to 177 feet and issued the Amended Permit. But an incorrect and critical assumption was made during review of the application that related to the mound. Review of the 2008 Application During his review of the application, Mr. Street, as DEP's stormwater engineer, assumed from the drawings that the Drainage Easement is functional.10/ The assumption was expressed in Mr. Street's testimony in the Department's case-in-chief: Q [D]id you determine whether the pipe, as it would be mounded . . . [the culvert extension covered in sod] . . . would create problems for storm water flow? A I looked at that. There were two conclusions that I drew. One was that the mound would create a higher water elevation on the Chbat property east of the mound, but would not create standing water west of the mound extending into the [Drainage E]asment . . . . Which on the drawings that I reviewed showed an existing trench at the south end of that easement. And it was my opinion that any water that fell west of the mound would exit through the easement. Tr. Vol. II at 92 (emphasis added.) Mr. Street's assumption that water would not pool to the west of the mound in the Drainage Easement and toward Mr. Sheehey's property was contradicted by Mr. Sheehey's stormwater engineer, Mr. Porterfield. THe Porterfield Testimony and Support for It at Hearing The testimony at hearing of Mr. Porterfield, who conducted a site visit, established the opposite of what Mr. Street assumed. The volume of stormwater runoff that pools east of the mound, that is, water on Lot 9, will not be as great as the volume as the water that pools west of the mound. Water that would have flowed onto Lot 9 from the Eastern Pond Culvert will flow directly to the Bay via the culvert extension. The extension will also protect the Drainage Easement and Lot 8 from water that would have flowed from the Eastern Pond Culvert onto that property. But there is a significant difference between stormwater to the west of the extension and to the east. To the extension's west, the Drainage Easement and Lot 8 will have to contend with stormwater from the Drainage Ditch Culvert, the culvert north of Alden Lane that does not convey stormwater from the pond but that like the Pond Culverts has a discharge point directed at the Drainage Easement. How often and to what extent pooling of stormwater will occur west of the mound due to its presence is difficult to determine on the state of this record.11/ No studies or analyses of the likelihood and severity of storm events and the volumes of stormwater runoff that would be produced by them were conducted by any of the stormwater engineers in the case nor were any such analyses done with regard to pooling caused by the presence of the covered culvert extension. The testimony of Mr. Porterfield, however, and other evidence, demonstrates that that additional collection of water west of the mound caused by the mound will occur following heavy rain. Mr. Street was present in the hearing room throughout the entire hearing, including during the presentation of Mr. Sheehey's case. As Mr. Street candidly testified on rebuttal after he had heard all the evidence: I would also maintain that the drainage easement which has signs of a historical usage as a drainage easement with a trench, in fact, that conveys water safely to the bay, that should be re-established and maintained. That’s what it’s there for.” Tr. Vol III at 181 (emphasis added.) Thus, it became clear to Mr. Street after listening to all the evidence in the case that the Drainage Easement has not been properly maintained. The trench that was expected to carry stormwater toward the Bay no longer exists. In short, the testimony of Mr. Street, for all his many strengths as a witness, falls short of supporting the position of the Department and Mr. Chbat. Having never visited the site,12/ he approved the project on the basis of drawings that do not conform to the on-site physical reality. When presented with the evidence at hearing that the Drainage Easement is not functioning, he championed re-establishment and maintenance of the Drainage Easement. Mr. Chbat placed part of the Swale's functionality problem on the tide pushing stormwater northward but his case also recognized the maintenance problem caused by deposition of sand that besets the Swale. Mr. Thomason, moreover, recognized that the Drainage Easement has the same maintenance issue. Mr. Chbat's stormwater engineer testified During storm events or just normal wave action in the bay, sand is brought back up on to. . . the sandy area at the end of [Chbat's] lot next to the water. And so that . . . tends to inhibit the natural flow down the swale . . . we have the same problem on the drainage easement . . . where sand builds up in that discharge. Tr. Vol. I at 62 (emphasis added). From this record, it is clear that neither the Swale nor the Drainage Easement functions properly. Their functional status, moreover, is due in significant part to lack of maintenance. It may be that maintenance ultimately will not solve the problem; maintenance efforts to keep the Swale and Drainage Easement clear of the sand deposited by tidal activity may require too much effort for them to be reasonably required. But that evidence was not produced. Indeed, the record was silent as to any maintenance efforts with regard to the Swale by Mr. Chbat or with regard to the Drainage Easement by the owner of the easement. The record is also silent as to whether DEP voiced any concern about the maintenance issues that beset the Swale. It is clear that concern was not raised by the Department in regard to the Drainage Easement until the rebuttal phase of the hearing, since the assumption was made that the easement was properly maintained. Whatever communication may have occurred with regard to maintenance issues among the parties, the Department issued the Amended Permit.13/ The Permit/Authorization Number for the Amended Permit is 66-235320-002-DF.14/ Issued December 19, 2008, the Amended Permit has an expiration date of December 19, 2013. The expiration date coincides with the construction phase of five years on the face of the Amended Permit. See Chbat Ex. 4. Mr. Sheehey Challenges the Amended Permit On January 6, 2009, Mr. Sheehey, pro se, filed with DEP a petition (the "Petition") seeking a formal administrative hearing with regard to "Amended Wetland Resource Permit 66- 00235320-002-DF." Although the Petition makes reference to the Amended Permit, it seeks in the first instance enforcement of the Settlement Agreement that relates to the Final Original Permit. The Petition states: "Petitioner believes that the Florida Department of Environmental Protection has jurisdiction over this matter and should enforce the March 20, 2007 Settlement Agreement which requires that Permittee act in conformance with Exhibit 'A' of the Agreement [the drawing of the Swale]." In the event that DEP declined to enforce the Settlement Agreement, the Petition sets out disputed issues of material fact that relate to issuance of the Amended Permit. The Petition was referred to DOAH on February 19, 2009. One week before the final hearing, the Department filed the motion in limine that is discussed in the Preliminary Statement of this Recommended Order. The motion was granted to the extent that it sought to preclude Sheehey from introducing evidence that supported enforcement of the Settlement Agreement since the 2008 Application, which, while bearing similarity to the 2004 Application, is nonetheless an independent application that should be approved or denied on its own merits without regard to the 2004 Application, the Proposed Original Permit, the Settlement Agreement or the Final Original Permit. The case proceeded to hearing on the remaining issues raised by the Petition: 1) whether Sheehey has standing to contest approval of the 2008 Application; 2) whether Chbat gave the notice required by Section 373.413, Florida Statutes, and 3) whether Chbat's application meets the criteria in statutes and rules for issuance of the Amended Permit. Standing The findings of fact relevant to Mr. Sheehey's standing are found in paragraph 9, above. Notice Notice of the 2008 Application was published in The Defuniak Springs Herald-Breeze, a newspaper published in Defuniak Springs, Walton County, Florida. The notice was published on October 23, 2008. The evidence presented by Mr. Sheehey concerning lack of legal notice consisted of testimony by Mr. Sheehey at hearing in response to questions from his counsel. See Tr. Vol. III at 134. The testimony does not establish that Mr. Sheehey was a person who had filed a written request for notification of any pending application affecting his particular area. The testimony of Mr. Sheehey, moreover, establishes that he was given oral notice of the application by Mr. O'Donnell within four days of its filing. WRP Permitting Criteria To obtain a WRP, an applicant must satisfy the criteria in Florida Administrative Code Chapter 62-312 and Section 373.414, Florida Statutes. These criteria govern a range of topics including water quality. Water Quality15/ Florida Administrative Code Rule 62-312.080 provides that no permit shall be issued unless the Department has been supplied with reasonable assurances that the proposed work will not violate water quality standards. Water that enters the pond spends some amount of time in the pond (residence time) before flowing out. During residence time, solids drop out of the water so that the quality of the stormwater that flows out of the pond is reasonably expected to be better than the quality of the stormwater runoff when it entered the pond. Vegetation surrounding the pond, furthermore, enhances the quality of the water in the pond, whether the water’s source is runoff or rain falling directly into the pond. The water that flows out of the pond north of Alden Lane is “existing discharge.” Tr. Vol. I at 65. It generally made its way to the Bay prior to the Swale. Some of it makes its way to the Bay via the Swale now; some of it outside the Swale as overflow. The culvert extension will convey that discharge to the Bay if the extension is installed. The quality of the water is not significantly less when it discharges to the Bay via the Swale or otherwise from the Chbat property than when it would enter the culvert extension should it be installed. It is true that the Swale would have provided filtration and additional treatment to the discharge from the Eastern Pond Culvert as does the Chbat property in general. But that does not mean that the quality of the culvert’s discharge is a concern. The Swale may have been an option preferable to the extension of the culvert as far as water quality goes but all parties agree that the Swale has failed as a conveyance (albeit Mr. Sheehey maintains that the Swale would work with proper maintenance.) That there is a discharge method that improves the quality of the discharge, such as a swale, does not mean that the discharge to the Bay via the culvert extension is of insufficient quality. None of the parties tested the quality of the discharge from the Eastern Pond Culvert. The Department, nonetheless, offered evidence with regard to its quality. The Department concluded that the quality of the pond and its discharge were not of concern. Had the pond been contaminated to an extent that would have given rise to concerns, moreover, the Swale or the culvert extension as a means of conveying the discharge to the Bay would not have made a “discernible difference.” Tr. Vol. II at 80. The Department provided evidence of assumptions made with regard to the quality of the water that led the Department to conclude that testing of the discharge was unnecessary. Mr. O’Donnell, the Department’s expert in the application of state rules and statutes in wetland resource permitting, detailed the assumptions at hearing: My assumption was that that pond was dug some time in the past as a way to provide fill for roads. That it was never any part of . . . [a] stormwater treatment system. And that it conveyed upstream water through the pond and then on down into Choctawhatchee Bay. It was strictly a [borrow pit and a conveyance pond.] It was never permitted as a treatment system in any way that I was aware of in my diligence [in determining whether the extension should be permitted.] Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the record at the behest of Mr. Chbat, the burden shifted to Mr. Sheehey to prove that the applicant had not provided reasonable assurance of water quality. Mr. Sheehey did not offer evidence of any testing of the discharge. Nor did he offer testimony that rebutted Mr. O’Donnell’s opinion. In fact, the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported Mr. O'Donnell's opinion with regard to water quality. See Tr. Vol. III at 112. In sum, the Department made assumptions that are found to be reasonable based on Mr. O’Donnell’s expertise and experience. Those assumptions were not shown to be unreasonable by Mr. Sheehey. The Department’s conclusions about water quality flow directly from Mr. O’Donnell’s reasonable assumptions. Reasonable assurances have been provided that the project will not violate water quality standards. Public Interest Test Choctawhatchee Bay is not designated as an “outstanding Florida water.” The test that Mr. Chbat must meet therefore is whether the activity proposed by the permit application is “not contrary to the public interest.” § 373.414, Fla. Stat. In making that determination, the Department is directed by the statute to consider and balance seven criteria. See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at issue once water quality is determined to be of no concern. Two of the three, “[w]hether the activity will be of a temporary or permanent nature,” Section 373.414(1)(a)5., Florida Statutes, and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity,” Section 373.414(1)(a)7., Florida Statutes, do not require in-depth consideration. With regard to the nature of the project time-wise, the evidence establishes that the culvert extension is intended to be permanent. With regard to current condition, the area affected by the proposed activity is a residential lot, a substantial portion of which is under water following heavy rain. To facilitate the conveyance of stormwater, the lot is served by the Swale. The Swale is not functioning optimally because of lack of maintenance and because of the Ridge. With regard to relative value from the standpoint of water quality, the function being performed by the lot and the Swale is little, at least as established by this record. While it is certainly true that the lot with or without the Swale will filtrate and otherwise treat stormwater runoff from the pond, the difference in the quality of the stormwater conveyed by the culvert extension from that which would enter the Bay without the extension is not significant. See the discussion above of Mr. O’Donnell’s accepted opinions. Of the seven statutory criteria to be weighed and balanced by the Department, the one that is central to this case is found in subparagraph 1., of subsection (1)(a): “[w]hether the [culvert extension] will adversely affect . . . the property of others.” The “property of others” in this case is the property of Mr. Sheehey. The Project’s Effect on the Property of Mr. Sheehey. For the reasons discussed in paragraphs 63-70, above, Mr. Chbat has failed to provide reasonable assurances that the project will not have a detrimental effect on the property of Mr. Sheehey. The extent of the detrimental effect to Mr. Sheehey's property is difficult to determine from this record but it is highly likely based on all the evidence of record that there will be a detrimental effect: additional flooding in heavy rain events.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection deny17/ the Amended Permit for the failure of Mr. Chbat to provide reasonable assurances that the project will not adversely affect Mr. Sheehey's property. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of January, 2010.
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY 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 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, 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 10th day of March, 1993.
Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 27th day of February, 1981.
Findings Of Fact The subject applications requests a permit from the Central and Southern Florida Flood Control District for the irrigation of 280 acres of golf courses. The public notice of hearing appearing in The Fort Lauderdale News, Fort Lauderdale, Florida, which noticed the permit applications submitted on behalf of the Fort Lauderdale Country Club, were received into evidence without objection. Mr. Carnahan, as representative for the applicant and Mr. Walker, on behalf of the Central and Southern Florida Flood. Control District stipulated to the introduction of the applications and the staff report of the Central and Southern Florida Flood Control District, without objection. It was further stipulated that the matters as contained in the applications and staff report could be utilized as a basis for findings of fact and recommended order, without the necessity of putting on testimony in behalf of - the applicant or the staff. Pursuant to that stipulation, oral testimony was not presented by the parties. The amount of water requested by the applicant in application number 21938 is 26 million gallons per year and the amount requested in application number 21939 is 264 million gallons per year. The staff report recommended an annual allocation in the amount of 14.4 inches which is equivalent to 336 acre/feet or 109.4 million gallons a year for approval. Mr. David Carnahan, P.E., representing the applicant, did not offer any further evidence beyond the application and staff report in support of the requests for permits. Specifically, Mr. Nagendra Khanal, Hydrology Division, Resource Planning, Central and Southern Florida Flood Control District, recommended the following, through his staff report: Allocation of 14.4 inches which is equivalent to 336.0 acre/feet or 109.4 million gallons per year. The following special provisions are recommended: Approval of maximum pumpage not to exceed 5.5 inches which is equivalent to 128.3 acre/feet or 41.8 million gallons per month. Diversions of water in this amount are subject to availability of surplus water in the basin, consistent with and subject to specific basin rules including minimum flows and levels, all as determined by the District. The existing five 12 inch wells with the total installed capacity of 3,020 gpm. The term of allocation is until October, 1977. The applicant shall install a measuring device. Pumpage records from the wells shall be submitted to the District at the end of each irrigation season. There were no persons at the hearing who wished to act as intervenors in the capacity of proponents or opponents of the applications, nor were there any members of the general public, not party to the proceedings, who wished to comment on the applications.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1975. COPIES FURNISHED: Mr. David Carnahan 1350 South Pompano Parkway Pompano Beach, Florida 33020 Stephen Walker, Esquire Post Office Box V West Palm Beach, Florida 33402 Fort Lauderdale Country Club 415 Country Club Circle Fort Lauderdale, Florida
