Findings Of Fact On May 24, 1994, Respondent, Jeff Dyson, applied for a dredge and fill permit from the Department to place an unspecified volume of fill within an historically-existing drainage ditch which carries water to the St. Johns River. The proposed project would direct the drainage currently flowing through the ditch into a 15-inch culvert, which would be installed on the property identified as Lot 3 of Riverwood Subdivision. Swales and structures associated with the culvert are to be constructed during the project and are considered a part of the proposal. See Department's Exhibit 1. The proposed project would place fill in waters of the State, thereby necessitating the Department's approval of the permit. The proposed project, as stated above, is located on Lot 3 of Riverwood Subdivision. The Petitioner owns Lot 4 of Riverwood Subdivision which is located to the east and downstream of the proposed project. The proposed project is located in Riverwood Subdivision which is already developed and single- family residences have been built on both of the lots adjacent to Lot 3. Respondent, Jeff Dyson, seeks the permit in order to develop Lot 3 and build a house on it. The drainage ditch which would be filled runs west to east across the center of Lot 3 and is between four and six feet wide. The depth of this 4itch increases as it moves west to east, reaching a depth of four feet at the eastern edge of the property, where it adjoins the Petitioner's lot. The proposed project would re-route the storm water runoff, which flows into the drainage ditch, around the single-family residence which Respondent, Jeff Dyson, proposes to build. The storm water runoff would be routed through a buried 15-inch culvert from the point of intersection of the existing ditch on the western boundary of the property to the point of discharge at the intersection of the existing ditch and the eastern boundary of the property. Filling of the drainage ditch previously was permitted by the Department in 1984 as part of the subdivision's development plan which authorized Robert A. Weyand to fill the ditch and construct along the southern boundary of the subdivision a swale which would redirect the then-existing drainage through the swale. The swale was constructed; however, the ditch was never filled. The swale carries the majority of the drainage entering the subdivision under Pine Street down the southern boundary of the subdivision to the St. John's River, Two 24-inch culverts under Riverwood Avenue remain from the drainage system which predates Mr. Weyand's permit. According to Mr. Potter, this old drainage system carries peak loads into the drainage ditch which Respondent, Jeff Dyson, proposes to fill at Lot 3. The 24-inch culverts were installed when the subdivision was developed in 1981; however, one of the culverts is completely blocked and the other is only partially open. Contrary to Mr. Potter's assertions about peak loads, the ditch collects water in light rains, and storm water pools on the southwesterly side of Riverwood Avenue and overflows Riverwood Avenue into the ditch flowing easterly in the direction of the proposed project. Riverwood Avenue, the only street in the subdivision, was designed to direct storm water along its curb and gutter system from west to east. This water adds to the flow over Riverwood Avenue at the point of the culvert where it joins with water running in the old drainage system and flows into the drainage ditch. The project, as designed by Mr. Potter, would not adversely effect the quantity of water east of the project. The project was designed so that there would no increase in the rate of runoff with the construction of the proposed residence. The project should not create any flooding downstream because there would be no alteration to the quantity or direction of the existing flows. Mr. Potter used the Department of Transportation (DOT) rainfall intensity duration frequency curves to determine the rainfall amount from the 1.88 acres on the western end of the subdivision upstream of the project. The DOT rainfall intensity duration frequency curves are widely accepted criteria for determining runoff for residential developments. In computing the amount of drainage flow which the 15- inch culvert would have to handle, Mr. Potter considered (1) the rainfall for a ten-year storm on the 1.88 acres at the westerly end of the subdivision, and (2) the flow under Pine Street through the existing culvert, which constitutes a limit to the potential flow into the drainage system at the southwest corner of the subdivision. The 15-inch culvert designed by Mr. Potter would handle two times the amount of water generated based upon the stated assumptions in a ten-year storm event. The proposed project would not increase these existing flows; however, the quantity of water exceeds the flow from the western portion of the subdivisions computed by Mr. Potter which follows the natural slope of the terrain into the old existing ditch system. The Petitioner introduced a video of the storm water collection and flow in a light rain at the location of the culvert under Riverwood Avenue. This video shows that the existing culverts under Riverwood Avenue will not handle the flow of water in the ditch southwest of Riverwood Avenue; therefore, the storm water backs up and flows over Riverwood Avenue at this point into the ditch east of Riverwood Avenue. Other than the ditch under Pine Street and the runoff from the 1.88 acres at the western end of the subdivision, the only other source of storm water runoff is the runoff on Riverwood Avenue. Mr. Potter observed the video and indicated that the amount of water appeared to exceed his computations. The Petitioner testified regarding the water levels in the ditch underneath his foot bridge over the ditch. During significant storm events, the water level reaches the bottom of the foot bridge. The area underneath the foot bridge exceeds the area of a 15-inch culvert. Water flow during a significant storm is unrestricted downstream of the foot bridge, and is not dammed up. The proposed project will constitute a dam on the existing drainage ditch with a 15-inch outfall. Based upon the video of the storm water runoff generated by a light rain, the Petitioner's observations of storm water runoff in the ditch during a significant storm event, and the design of the storm water runoff on Riverwood Avenue, it can be reasonably anticipated that the proposed project will dam up water to the west of the project to the highest level of the swale in front of the proposed project. Although the proposed project will not adversely effect the quantity of water, the water impounded by the project would cause a significant flooding problem for the upstream property owner. The design of the culvert does not provide for protection against children being pulled into the culvert system. The water impounded by the proposed culvert system would be an attraction to children who would be at risk of being pulled into the culvert. It is particularly dangerous because the ditch is much shallower southwest of Riverwood Avenue, and when flooded, the depth of the ditch northeast of Riverwood Avenue is not apparent. The water quality standards are currently being met at the site of the proposed project. The proposed project, as constructed, is not expected to cause any water quality violations. The permit contains conditions designed to maintain water quality during actual construction. These conditions include General Conditions No. 4 and 5 and Special Conditions 5- 10. Reasonable assurances were provided that water-quality standards will not be violated by the proposed project if built in accordance with the designs submitted. The design of the 15-inch culvert includes a 90 degree change of direction before connecting to the outfall on Lot 4. This 90-degree change in direction will dissipate the energy of the water, reducing the likelihood of scouring or erosion at the outfall point. Although the project is designed to eliminate scouring, the Department has included a condition in the permit, which requires Respondent, Jeff Dyson, to correct scouring, shoaling, or other alterations of the downstream portion of the drainage way. The flooding to the upstream property owner can be minimized by lowering the level of the swale in the front of the project to create an emergency spillway. The applicant has provided reasonable assurance that the water quality will not be adversely effected, and the proposal will not increase the volume of water. The project will not adversely effect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The ditch does not contain any fish or wildlife. The subdivision in which the project is located is almost completely built out. Therefore, there are no endangered or threatened species living in the area. The project will not adversely effect navigation or the flow of waters and will not cause harmful erosion or shoaling. The project will not adversely effect fishing or recreational values or marine productivity. There are no fishing or marine recreational values associated with drainage ditches. The project will be permanent in nature. The project will not adversely effect significant historical or archeological resources. The current function of the ditch is to convey storm water to the St. John's River. This function will be effected as indicated above because the proposed project constitutes a dam with a 15-inch outfall. If the 15-inch culvert is incapable of carrying the storm waters introduced into the ditch west of the proposed project, the storm water impounded by the proposed project will flood the property west of the project to the level of the highest point of the swale in the front of the project. By redesigning this swale to have a maximum elevation of ten feet or less feet, the flooding will be retained within the approximate elevations of the existing ditch. In addition, steps can be taken to minimize the potential hazzard to children caught in the ditch. There are no cumulative impacts associated with this project. Except as noted above, the applicant provided reasonable assurances that the project is not contrary to the public interest, as defined by Section 373.414, Florida Statutes. The Department uses a balancing test, which consists of taking the public-interest criteria and weighing the pros and cons of a specific project. The ultimate question is whether the proposed project is contrary to the public interest. The Department believed that it was not contrary to the public interest. Based upon the evidence presented, the project has two adverse impacts, as indicated in Paragraphs 16 & 27. However, these can be eliminated or minimized to an acceptable level by the modifications recommended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department approve issuance of the permit with the added conditions that the swale and driveway at the front of the proposed project not exceed an elevation of ten feet and that the culvert be constructed to protect children from being pulled into the intake. DONE and ENTERED this 21st day of November, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Jeff Dyson 395 Corporate Way Orange Park, Florida 32065 Michael S. McGurk 297 Riverwood Drive Orange Park, Florida 32073 Lynette Ciardulli, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Al Potter 905 North Street Jacksonville, Florida 32211 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
The Issue The issues to be decided in this case are whether Respondent is liable for the violations charged in the NOV, whether Respondent should pay the penalties assessed in the NOV, and whether Respondent should be required to take the corrective actions demanded in the NOV.
Findings Of Fact On August 7, 2014, Petitioner issued the NOV, charging Respondent with failure to maintain its stormwater facility in compliance with its permit and state law. Respondent filed an answer and request for a hearing. The matter was referred to the Division of Administrative Hearings. Petitioner Department of Environmental Protection (“Department”) is the state agency having powers and duties related to the regulation of stormwater facilities. Respondent Classic Homebuilders Incorporated is a Florida corporation and holds a General Stormwater Permit issued by the Department for the construction and operation of a stormwater facility at 5100 Terra Lake Circle, Pensacola, Florida. On April 9, 2013, Department staff inspected Respondent’s stormwater facility and determined that the ponds do not percolate within 72 hours as required by the permit. On July 23, 2014, Department staff inspected the facility again and determined that the percolation problem had not been corrected. Debris and silt were observed in the stormwater facility. Respondent has not submitted an “as-built” certification. The Department incurred $500 in expenses associated with its investigation of this matter. That is a reasonable amount.
The Issue Whether Petitioner should be granted No Notice General Environmental Resource Permits for Lots 61, 245, and 247 within Unit of Development 11 of the Indian Trail Improvement District, pursuant to permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapters 40E-40 and 40E-400, Florida Administrative Code, and the South Florida Water Management District's "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District--November 1996."
Findings Of Fact Petitioner, Royal Palm Beach Colony (Royal Palm), is a limited partnership registered and authorized to do business in the State of Florida. Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a water management district, with its principal office in West Palm Beach, Florida. Intervenor, 1000 Friends of Florida, Inc., is a not- for-profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. Intervenor, Indian Trail Improvement District (ITID), is a special district of the State of Florida established by special act of the Legislature, Chapter 57-646, Laws of Florida, and operating pursuant to applicable provisions of Chapter 298, Florida Statutes, as well as special acts of the Legislature. Royal Palm owns approximately 171 lots within Unit of Development 11 of ITID (Unit 11) in Palm Beach County, Florida. Each lot is approximately 1.25 acres. Not all of the lots owned by Royal Palm in Unit 11 are contiguous. Unit 11 is a rural subdivision within ITID, in which there are numerous private property owners. The property of Royal Palm that is the subject of dispute is comprised of three lots, Lots 61, 245, and 247. Unit 11 is within the C-18 Basin. Prior to the construction of the C-18 Canal, the area was typically drained by sheet flow to the north. Because of the flat topography, the drainage in the C-18 Basin is poor; therefore, following periods of heavy rainfall much of the land is inundated. Unit 11 contains an extensive amount of wetlands. There are currently no habitable structures within Unit 11. It consists of vacant lots with an interconnected network of roads, canals, and roadside swales. On August 15, 1975, SFWMD's predecessor, The Central and Southern Florida Flood Control District, issued ITID a surface water management permit, Permit No. 50-00136-S (the 1975 permit) for construction and operation of a surface water management system serving Unit 11. The permit authorizes discharge from Unit 11 to the west leg of the C-18 canal via three culverts. In 1988, SFWMD undertook a comprehensive examination of the C-18 Basin, which resulted in a publication entitled "Technical Publication 88-11, Flood Management Study of the C- 18 Basin, August, 1988." The study documented that the western leg of the C-18 canal lacked capacity to accept the permitted discharge from Unit 11. SFWMD determined that the development of Unit 11's flood control and water quantity management system according to Permit No. 50-00136-S would be inconsistent with the overall objectives of SFWMD, harmful to the water resources and the public's health, safety, and welfare, and to the policies and purposes of Chapter 373, Florida Statutes, and not in the best interest of future residents of Unit 11. SFWMD and ITID entered into a consent agreement concerning Unit 11 on July 7, 1989 (the Consent Agreement). SFWMD and ITID agreed that ITID would apply for, process, and obtain a modification of Permit No. 50-00136-S to address and resolve SFWMD's flooding and water quality concerns. In addition, ITID was to construct the surface water management system authorized in the permit modification in accordance with the terms of the permit. ITID received a permit from SFWMD in 1990 authorizing modifications to the surface water management system in order to address the issues identified in the Consent Agreement, namely potential flooding of homes constructed for future residents of Unit 11. The improvements approved in the 1990 permit were never implemented, and the permit expired. In 1992, ITID proposed a different modification to the surface water management system that proposed an impoundment for retention of stormwater. The permit application was recommended for denial by SFWMD staff, but has never been presented to the SFWMD Governing Board for final agency action. The problems regarding the water quality and flooding problems set forth in the Consent Agreement have not been remedied. On December 4, 1997, Royal Palm obtained variances from the Palm Beach County Health Department (the Health Department), granting Royal Palm the right under certain specified conditions to construct on-site sewage treatment and disposal systems (OSTD Systems) on Lots 61, 245, and 247. Originally, the Health Department had denied Royal Palm's request for permission to construct the OSTD Systems on lots 61, 245, and 247 on the grounds that the lots were located in an area subject to frequent flooding and the drainage in the subdivision had not been constructed in accordance with SFWMD's requirements. Subsequent to the granting of the variance, Royal Palm revised its site plans for the three lots, and those revised plans have not been reviewed by the Health Department for compliance with applicable rules. On March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to a No Notice General Permit (NNGP) for Lots 61, 245, and 247 for activities in uplands pursuant to Rule 40E-400.315, Florida Administrative Code. On April 9, 1998, SFWMD issued its agency action by letter that informed Royal Palm that SFWMD staff had determined that the three lots did not qualify for a NNGP. The letter stated the reasons for denial as follows: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E- 400.315(1)(f), Fla. Admin. Code. Royal Palm Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system with use of septic systems and the associated lack of water quality treatment will not cause pollution in violation of water quality standards. See Rule 40E-4.301(1)(e), and 40E-400.215(11), Fla. Admin. Code. There is not a viable or functioning stormwater management system in place or proposed to provide reasonable assurance that the septic systems would properly function. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-400.301(1)(f), Fla. Admin. Code. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause water quality impacts to receiving waters and adjacent lands. See Rule 40E- 4.301(1)(a), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not cause adverse flooding to on-site and or/or (sic) off-site properties. See Rule 40E- 4.301(10)(b), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse impacts to existing surface water storage and conveyance capabilities. See Rule 40E-4.301(10)(c), Fla. Admin. Code. The proposed project adds impervious area and eliminates water storage. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that construction and/or operation of the proposed system will not adversely impact the value of functions provided to fish and wildlife and listed species and other surface waters. See Rule 40-4.301(1)(d), Fla. Admin. Code. This consideration is especially relevant when considering the larger common plan of development. Reasonable assurance has not been provided to show that the proposed system or project is capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed. See Rule 40E- 4.301(1)(i), Fla. Admin. Code. On April 23, 1998, Royal Palm filed its Petition for Formal Administrative Hearing with the clerk of SFWMD, initiating this proceeding. Rule 40E-400.315(1)(f), Florida Administrative Code, is intended to authorize only very minor activities that have no potential to cause harm to water resources. Because the NNGP is issued by rule, SFWMD does not typically review projects that are conducted pursuant to a NNGP. A NNGP does not authorize projects that are part of a common plan of development or sale. In determining whether an activity is within a larger common plan of development, SFWMD staff look to see whether the project has shared infrastructure that facilitates development, such as canals, swales, and roads. A surface water management is in place in Unit 11. It consists of roads, swales, and drainage canals. The system drains to the C-18 canal via three culverts. The system was put into place as a result of the issuance of the 1975 permit, but there have been no modifications to the system as required by the Consent Agreement. During the last ten years ITID has done minimal maintenance to the system. A common road network within Unit 11 provides access to each of the three lots. The lots will depend on the swales and drainage canals as part of overall stormwater management system that serves Unit 11. Unit 11 is a common plan of development. Accordingly, the activities proposed by Royal Palm, filling in order to construct three single family houses with driveways, mounded septic tank systems, and wells within Unit 11 are not authorized pursuant to a NNGP. Royal Palm's predecessor company originally owned all the lots in Unit 11. Royal Palm is presently liquidating its assets. Royal Palm selected the three lots at issue in this case for permitting for individual homes because the lots represented a good overview of the different types of Royal Palm's holdings in the area. If Royal Palm is able to build homes on the three lots and depending on the market conditions and other outside factors, Royal Palm will make a decision on how to liquidate the other 168 lots in Unit 11. It is anticipated that the construction of the homes on the lots at issue will involve placement of fill. Land development, including the placement of fill, displaces stormwater that would, on a property in its natural condition, pond on the surface or soak into the ground. In order to determine whether a project complies with the flood protection criteria, SFWMD staff must consider the effect the proposed land development has off-site, and the effects surrounding lands may have on the lot to be developed. The flood routing calculations provided by Royal Palm in its application did not provide any analysis of how discharges from surrounding properties would affect the performance of the surface water management systems constructed on the lots at issue. Nor did Royal Palm address the potential for flooding of off-site properties by stormwater displaced by fill and impervious areas that are contemplated on Lots 61, 245, and 247. The three lots are not hydrologically separate from the remainder of Unit 11. Royal Palm's failure to include a detailed analysis of the surrounding area also precluded SFWMD from making a determination as to the impacts of the proposed activities upon existing surface water storage and conveyance capabilities. The proposed projects are single family houses. It is reasonable to expect that some discharge of untreated stormwater runoff from the system directly into wetlands and other surface water will occur. For Lots 245, 247, and 61, the proposed stormwater management system includes a dry detention area. Considering the topographic information for this site, part of the runoff from the fill area will not flow into the dry detention area but will flow untreated directly into wetlands and other surface waters. The runoff could reasonably be expected to include oils, grease, and petroleum from the driveway area and herbicide and pesticides from the yard area. The untreated runoff could pose an adverse impact. Development adjacent to wetlands has the potential to disrupt the usage of those wetlands by wildlife. Section 4.2.7 of the Basis of Review provides that secondary impacts to the habitat functions of wetlands associated with adjacent upland activities are not considered adverse if buffers with a minimum width of 15 feet and an average width of 25 feet are provided abutting those wetlands. In certain circumstances, additional measures are necessary. The Basis of Review provides that buffers must be in undisturbed condition, except that drainage features can be located in the buffer if their construction and operation will not negatively impact the wetlands. The design drawings for Lots 245 and 247 demonstrate that the buffers are not undisturbed because fill will be placed in the buffer areas. There is no treatment system in place for the roads in Unit 11; thus, there is a potential for untreated runoff from the roads, which could contain oils, grease, and petroleum constituents, to reach wetlands or surface waters. The roads in Unit 11 are sometimes under water and will require increased maintenance to correct erosion from increased vehicular traffic. Road maintenance and grading present the potential to discharge sediment laden water into adjacent wetlands. This threat is particularly great in Unit 11 because many of the roads go directly through wetlands. The engineering calculations submitted by Royal Palm anticipate that the elevation of the roads will be raised. Raising the elevations will require additional fill, and because several roads in Unit 11 go through wetlands, additional filling of wetlands can be anticipated. Section 6.9(a) of the Basis of Review, requires that residential projects must have the calculated ability to discharge a sufficient volume of stormwater such that the system can return to the control elevation within 12 days of a design storm event. Royal Palm failed to provide information demonstrating that the storage volume provided by the systems proposed for the three lots can be recovered and therefore available for subsequent storm events. Without an adequate understanding of the functioning of the overall surface stormwater management system in Unit 11, it is impossible to determine the amount of time necessary for the systems on the three lots to bleed down to control elevation. In order to allow access to the three lots from the roads, fill must be placed in the roadside swales. Because the elevation of the roadside swales is below the seasonal high water table, they are defined as other surface waters. The swales are depressional areas that support an abundance of obligate wetland vegetation; thus, they are encompassed within the definition of jurisdictional wetlands. Thus, the project will involve direct impacts to wetlands.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Royal Palm Beach Colony, L.P.'s application for No Notice General Permits for Lots 61, 245, and 237. DONE AND ENTERED this 9th day of March, 1999, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1999. COPIES FURNISHED: Samuel H. Poole, III, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Alfred J. Malefatto, Esquire Teresa J. Moore, Esquire Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 777 South Flagler Drive Suite 300 East West Palm Beach, Florida 33401 Terrell K. Arline, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, Florida 32301 Charles F. Schoesch, Esquire Caldwell & Pacetti 234 Royal Palm Way, Suite 300 Palm Beach, Florida 33480
The Issue The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility. This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny. The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County. There are basically four types of treatment being provided in the proposed stormwater management system: Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin; The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand; Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and One and one-half inches of runoff from 4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes. Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall. In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5), F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above. DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445 The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner and Respondent Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted. Paragraph 4: Accepted. Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.) Paragraphs 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted. Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance. Findings proposed by Intervenor Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted. Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.) Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance. Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence. Paragraph 9: Rejected as irrelevant. Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details. Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence. Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details. Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity. COPIES FURNISHED: Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
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.
The Issue As stipulated by the parties, the issues to be resolved in this proceeding concern whether the septic system sites in question are within 75 feet of "surface water", as defined by the law cited below and whether the actions and representations of Department personnel have created an estoppel against the Department from refusing to issue the subject permits.
Findings Of Fact The Petitioner, Lagoon Oaks, Inc., is a Florida corporation. It is the developer of Lagoon Oaks, Eighth Edition, as shown on the plat in evidence, and is engaged in the business of developing the subdivision. It does not construct homes on individual lots. Instead, it sells the lots to home builders, who then construct the homes. Mr. Fred Webb, as President and sole stockholder of the Petitioner corporation and the owner of the lots for which the permit applications at issue in this proceeding were submitted. The applications for the permits concern Lots 31 and 32, Eighth Edition to North Lagoon Oaks, a subdivision located in Section 9, Township 4 South, Range 15 West, Bay County, Florida. The lots are located on Oakbrook Lane, in Panama City Beach, Florida. The Estoppel Issue Mr. Webb, the Petitioner's President, became concerned about difficulties in obtaining septic system permits for homes he proposed to construct on the subject lots. Consequently, he contacted Steve Lewis, Esquire to assist in resolving the permitting problem for the subdivision. Mr. Lewis began by visiting the lots himself. He then reviewed the applicable statutes and rules and contacted Mr. Eanix Poole, the Bureau Chief of the On-Site Sewage Treatment and Disposal Program for the Department in Tallahassee, Florida. Mr. Lewis requested a meeting with Mr. Poole at the site to view the property and attempt to resolve disputes regarding the permits. The meeting was held on or about March 29, 1994. Mr. Webb, Mr. Lewis, Mr. Poole, Mr. Mike Sarra, the program head for Bay County, Florida, and Mr. Shuster, who is a United States Department of Agriculture Soil Scientist, assigned to work with the Department on septic system issues, were present at the meeting. Mr. Sarra and Mr. Poole were present in their official capacities as representatives of the Department. During that meeting, Lots 29-33 were discussed. Mr. Webb was proposing to put mounded septic systems on the rear of the lots because of their relatively-low elevation in relation to the water table. The discussion involved the question of whether certain adjoining property behind Lots 29-33 was a "surface water", as defined in Section 381.0065(2)(1), Florida Statutes, and Rule 10D-6.042(47), Florida Administrative Code. The definitions contained in the statute and rule, respectively, are as follows: 'Surface water' means a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds and sloughs, and natural or constructed ponds contained within a recognizable boundary. This does not include retention or detention areas designed to contain standing or flowing water for less than 72 hours after a rainfall. Surface water - a recognizable body of water, including swamp or marsh areas, bayheads, cypress ponds, sloughs, and natural or con- structed ponds contained within a recognizable boundary. This does not include storm water retention or detention areas designed to contain dstanding or flowing water for less than 72 hours after a rainfall. Mr. Lewis and Mr. Webb contended that the area was not a surface water, and Mr. Poole and Mr. Sarra contended that it was. They opined that the proposed septic system sites were within 75 feet of what they deemed to be a surface water, precluding permit issuance. Photographs in evidence, as the Petitioner's Composite Exhibit 2, were taken shortly after that on-site meeting. They show that the area behind Lots 31 and 32 was, at that time, cleared of underbrush and was populated by a large number of pine trees. The photographs give no indication of a recognizable body of water, including a swamp or marsh area, bayhead or cypress pond or slough or a natural or constructed pond contained within a recognizable boundary. The testimony of Mr. McWilliams corroborates this. He found no recognizable boundary, no ordinary high-water mark, and found that the supposed "wet weather pond", as Mr. Poole described it, was, in reality, a parcel of "pine flat woods", comprised predominantly of a slash/pine canopy of mature pine trees from 60 to 80 years old. At the time of the site visit, which was after a significant rainfall the preceding night, there was little or no standing water behind the lots in question. Mr. Lewis saw very little standing water, and Mr. Poole does not recall any standing water. Nevertheless, Mr. Poole determined that the area behind the lots constituted a "wet weather pond", which he believed to be within the definition of "surface water". He described such a term as meaning an area where water is present at certain times of the year. Mr. Poole conceded that the term "wet weather pond" is not found within the definitions referenced above as a recognized "surface water". It is not a term describing a criteria for granting or denying a permit. No ordinary high-water line had been determined as of the time of this site visit, or later, concerning this alleged surface water. During the course of the meeting, it was suggested by Mr. Poole that if additional fill were placed immediately adjacent to Lots 29-33 in the areas behind those lots, then the problem of the "wet weather pond" would cease to exist, and the septic system permits could be issued. Mr. Webb protested this suggestion because the cost would be prohibitive. It would require him to place fill on property he did not own, and he was not sure that he could secure permission from the landowner to do so. He was reluctant to pursue such a settlement option on a problematic basis of obtaining permission from the adjoining landowner, when he really wanted to settle the matter with Mr. Sarra and Mr. Poole that day. He understood that they had the authority to settle the disputes, based upon their representations. During the discussion concerning placement of additional fill on the adjoining property, Mr. Webb brought up the fact that regardless of whether he put fill on those areas, the water would, because of the overall slope of the area, continue to drain across the areas which the Department had claimed constituted surface water. Upon discussion of this issue, Mr. Sarra and Mr. Poole concluded that such drainage would not pose an impediment to the issuance of permits, because with the addition of fill, the purported wet weather pond and, hence, "surface water" would no longer exist. The representations made by Mr. Poole and Mr. Sarra concerned the fact of whether the area in question adjoining the lots was a surface water and whether, if additional fill were placed on that adjoining property, the area would retain the alleged "wet weather pond" character. A representation was made by the Department, through Mr. Poole and Mr. Sarra, that if the additional fill were placed on the adjoining property, the question of whether it was a surface water within 75 feet of the proposed septic system site would become moot, and the Department would have no further reservation about issuing the permits. Mr. Poole was the Bureau Chief of the On-Site Sewage Program, and Mr. Sarra was the head of the Bay County Public Health Unit. By virtue of their positions with the agency, they were empowered to resolve such disputed issues. Mr. Poole testified that one of the functions of his position was to try to mediate disputes regarding permits and resolve the issues. Further, he and Mr. Sarra were perceived by Mr. Webb and Mr. Lewis, as his attorney, as having such authority. In any event, after voicing his objections concerning permission of the adjoining landowner, Mr. Webb ultimately agreed to try to secure permission to put the fill on the adjoining property. Following the meeting, Mr. Lewis wrote a confirming letter to Mr. Sarra. That letter is in evidence as Petitioner's Exhibit 3. A copy of that letter was also received by Mr. Poole. The letter confirmed the discussion that had taken place on the site with regard to Lots 29-33, concerning filling, as well as concerning other lots in the subdivision. Mr. Webb and Mr. Poole both testified that the letter accurately reflected the discussions which had taken place during the meeting. The letter clearly states that with regard to certain of the other lots in the subdivision, Lots 21-24, it was agreed that permitting was not possible at that time without further investigation of the situation regarding those lots. The letter was not an attempt to bind the agency to permit issuance concerning all of the lots under discussion. As to Lots 29-33, however, the letter confirms that Mr. Webb would attempt to follow the Department's suggested course of action and would attempt to secure permission to place fill on the adjoining property. He did not concede, however, that the area behind the lots was actually a surface water. No reply by Mr. Sarra or Mr. Poole or anyone else was made to Mr. Lewis' letter. No indications were given to Mr. Webb or Mr. Lewis, either orally or in writing, that despite the representations made on site during the meeting and despite the recitations in Mr. Lewis' letter, additional or more specific conditions were assumed by the Department. No hint was given that additional review would be required in order to issue the permits. Mr. Webb was able to secure permission from the adjoining landowner to place additional fill on the adjoining property. Because this operation entailed the mobilization of substantial equipment and personnel, the filling did not actually take place until sometime in October of 1994. During that period of time, Mr. Webb placed additional fill on Lots 29-33 themselves and approximately six inches to a foot of fill on the adjoining property behind the lots, in accordance with the Department's proposal. In addition, as part of the process, septic system sites for mounded septic systems were prepared in the rear of Lots 31 and 32. In the process of placing the fill, a "drainage way" was graded into the fill (a shallow, relatively-wide structure, similar to a swale in configuration) in order to accommodate the drainage of the water which was understood by the Department and the Petitioner to still require moving across the area. The six to twelve inches of fill was placed on the area in the rear of Lots 31-33, based upon the representations made by Mr. Poole and Mr. Sarra during the meeting which occurred. Mr. Webb spent approximately $25,300.00, of which $24,000.00 was for equipment and personnel time and approximately $1,300.00 was for the dump truck rental for placing the fill on Lots 29-33 in the area behind them and adjacent to them. He used equipment and personnel to obtain the fill off site, haul it to the edge of the borrow site, placed it on leased dump trucks, to transport it over public roads to the site, and used his own equipment and personnel to spread and grade the fill. He spent approximately $4,000.00 placing the fill on the adjacent property and approximately $5,000.00 was spent on each of Lots 31 and 32. The evidence clearly establishes that, but for the proposal of the Department during the site visit that Mr. Webb place fill on the adjoining property, in order to secure permit issuance, Mr. Webb would not have undertaken to expend the time, effort and money to place the fill on the adjoining property. In expending these resources, Mr. Webb relied upon the representations made by Department officials, Mr. Poole and Mr. Sarra, acting in their official capacities, regarding what he could do to make the sites permittable. Following his placement of the additional fill on the lots and on the adjoining property, a permit for an on-site septic system was applied for on Lot 33, which is immediately adjacent to Lots 31 and 32 and contiguous to the alleged "wet weather pond". The septic system on Lot 33, like that proposed for Lots 31 and 32, is located on the rear of the property near the property line, closest to the adjoining property which was filled. Lot 33 was one of the lots discussed in the on-site meeting as unpermittable prior to the fill being placed on the adjoining property. In accordance with the discussions on site and in partial fulfillment of the commitment made by the Department to issue permits if the filling was performed, a permit was granted for the system on Lot 33. Interestingly enough, the Lot 33 septic system site was shown by Mr. McWilliams to be only about 45 feet from the so-called "drainage way" described in his testimony, which the Department now maintains constitutes a "ditch", "stream", or other "surface water". This is its current basis to continue to deny the permits for Lots 31 and 32 as being less than 75 feet from such a supposed "surface water". The Department's Current Surface Water Issue In approximately December of 1994 or January of 1995, Mr. Sarra retired from his position with the Department. On August 1, 1995, Mr. Poole changed positions within the agency to become an administrator for the Department in Jefferson and Madison Counties. After their departures from their former positions, the Department changed its position regarding the issuance of these permits. On or about March 23, 1995, applications were made with the Department for the permits at issue in this case; and on May 19, 1995, a letter was written by Mr. Carl Darcy of the Department denying the permits. The denial letter makes reference to "numerous recent site visits". Mr. Darcy testified that he visited the site four times. The only indication of any site visits, other than his testimony, is a notation in the permit file, which states "surface water within 75 feet of site-March 20th through April 17th." Mr. Darcy testified that this notation indicated his site visits were between those dates, but he could not state the exact dates or times of day he visited the site and admitted that there was no notation in the permit file regarding any visits other than the two visits on March 20th and April 17th. In the course of his duties, in his position, Mr. Darcy makes approximately 35 to 60 such site visits in his district per month. He generally does not draw any diagrams which would serve to indicate the size, location, or distance of any surface waters from a proposed septic system site, as identified during the site visit. In this case, the permit file contains no diagrams, photographs, or other writing, except the notation described above, indicating the present size, location, or other physical or temporal attributes of the alleged surface water. There is no notation therein concerning the distance of the alleged surface water from the proposed sites, on the days he visited. The Department's records do not reflect whether it had rained the night before, or the week before his visit, the time of day, or the weather conditions at the site during his visit. The records do not indicate the location of any ordinary high-water line or recognizable boundary of the purported surface water. Mr. Darcy stated that he had, prior to hearing, obtained some rainfall data via telephone from a rainfall-collection station some two or three miles away. Mr. Darcy's testimony regarding site conditions he purportedly observed during his inspection visits are not corroborated by any notations or indications in the Department's permit file to document the visits and the antecedent conditions at the site or the conditions prevailing after the site visits. Thus, they can be of little weight, particularly in light of the number of site visits which Mr. Darcy typically makes in the course of his duties each month and the fact that he admitted that some of his site visits had not been documented in the permit file at all. He does not, as a matter of practice, make determinations of ordinary high-water line of surface waters in relation to proposed septic systems and did not do so in this case. Rather, he testified that he simply "walked out to the water and there it was." He testified that the Department has no method of determining an ordinary high-water line. Like Mr. Darcy, Mr. Hammons, an employee of the Department, also makes such site visits. He admitted that he has no training in how to perform ordinary high-water line surveys and did not make a determination of the "recognizable boundary" of the purported surface water in this instance. He did not make measurements of any distances of water he may have observed from the proposed septic system sites. Mr. Darcy testified that the Department interprets the provisions of Chapter 381 and related rules to mean that the presence of visible liquid water on the surface of the ground for greater than 72 hours may constitute a surface water. However, assuming arguendo that the "72-hour rule" is a valid interpretation and a basis for denying a permit, Mr. Darcy could not establish whether he had made any visits to the site which were at least 72 hours apart. Mr. Hammons testified that he had not made visits 72 hours or more apart for purposes of determining whether surface water he might have observed remained present. Neither Mr. Darcy nor Mr. Hammons had definite knowledge of actual conditions prevailing on the sites 72 hours prior to or after their site visits and, therefore, neither could state whether or how much it may have rained at the sites prior to their visits, how long any water was present prior to their site visits, or whether any water observed during their site visits still remained visible 72 hours after their visits. Mr. McWilliams was qualified to testify as an expert regarding the wetland or biological characteristics of the area alleged to be surface water by the Department; concerning whether surface water exists in the area in question; whether it has or may have an ordinary high-water line, as well as the process for determining ordinary high-water lines. The area immediately adjacent to and behind Lots 31 and 32 is characterized by a mature pine canopy. The pine trees are between 50 and 80 years old. The presence of these slash pines is inconsistent with the area being surface water, being regularly inundated or "normally wet". Slash pine grows in dry upland soils. Scattered amongst the pines is a mid-story of a number of sweetbay trees. Their number is relatively sparse, when compared to the slash pine and they do not constitute a portion of the canopy. Under the canopy, the areas of new fill have been densely colonized by a fairly large number of opportunistic herbaceous species, including rushes, sedges, and a few isolated, small pockets of cattail. There is a small excavated drainage way running through the area through which water has flowed in the past. The photographs, in evidence as Petitioner's Exhibit 5, show that this drainage way does not have a mucky bottom or other defining characteristics which clearly set its area apart from the other recently-filled areas, except, perhaps, a slight difference in elevation. Mr. McWilliams established that the area immediately behind and adjacent to Lots 31 and 32 is not a swamp, a bayhead, a cypress pond, a slough, a lake, a canal, a normally-wet drainage ditch, a retention area, or a stream. Indeed, even Mr. Darcy admitted that the alleged surface water he purported to find is not a swamp, a marsh, a bayhead, a cypress pond, a slough, a natural or constructed pond, a lake, a canal, or a retention area. Mr. Darcy was not sure if it constitutes a ditch and claimed that it constituted a stream. However, he also admitted, on cross-examination, that the stream does not flow at all times. This supports Mr. McWilliams' showing that during his visits, while there may have been some areas of standing water, there were no contiguous or continuous areas of flowing water which could constitute a stream. The actions of Mr. Webb, in placing fill on the adjacent property, have caused water, which drained across the property anyway, to drain in a more identifiable drainage way, which was left when his crews finished grading and spreading the fill and left a shallow, swale-like drainage way. The photographs in evidence (Petitioner's Composite Exhibit 5) of that adjacent property show merely a depression in sandy soil, through which water appears at some time to have flowed. No water was presently extant, as shown in the photographs. Both Mr. Darcy and Mr. Hammons conceded that each time they visited the site, the amount of water observed was different. Mr. Darcy testified that in order for an area to constitute a surface water at a particular point in time, water must be present, and he conceded that the alleged stream probably is not continuous at all times. In fact, there is no water body, stream, or otherwise on the adjoining property. Rather, the adjoining property serves as a drainage way for water from higher elevations. There is no evidence that the water, which has been observed by Department personnel, constitutes a surface water body, such that it has the characteristics of a recognizable body of water, including, but not limited to, a recognizable boundary or an ordinary high-water line. The Department has failed to follow its own rules, which dictate that an ordinary high-water line be established in order to properly evaluate a permit request. Mr. McWilliams demonstrated that based upon his extensive experience with ordinary high-water line surveys and his knowledge of conditions at this site, the alleged surface water on the adjoining property cannot have an ordinary high-water line. This is because the water, which may be found there intermittently from time to time, does not have the character of a recognizable body of water and is not a stream or other surface water. It is simply water draining from high ground across that parcel of property to a culvert, downgradient, on a temporary or intermittent basis. The concept of ordinary high-water line, therefore, does not apply to the subject property and site. In summary, the evidence demonstrates that there is no surface water, as defined in the statute and rules at issue, within 75 feet of the proposed septic system sites for which permits are sought.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services directing that the permits at issue in this proceeding be issued without further delay or the imposition of any additional conditions. DONE AND ENTERED this 8th day of March, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 8th day of March, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4394 Petitioner's Proposed Findings of Fact 1-27. Accepted. 28-30. Accepted, in concept, but rejected as subordinate to the findings of fact made by the Hearing Officer, and to some extent, unnecessary. 31-32. Accepted. 33. Accepted, as modified by the Hearing Officer. 34-49. Accepted. Rejected, as unnecessary, irrelevant and immaterial. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. Rejected, as immaterial. Accepted. 6-7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 8. Accepted. 9-11. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. Rejected, as contrary to the preponderant weight of the evidence. Accepted, but not itself materially dispositive. 14-15. Rejected, as not entirely in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 16-17. Rejected, as contrary to the preponderant weight of the evidence, in part, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, irrelevant. COPIES FURNISHED: Lee M. Killinger, Esquire Taylor, Brion, Buker and Greene 225 South Adams St., Ste. 250 Tallahassee, FL 32301 Thomas D. Koch, Esquire Department of Health and Rehabilitative Services 2639 North Monroe St., Ste. 126-A Tallahassee, FL 32399-2946 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact The proposed project is a six-lane, combination low and high level bridge crossing Mill Cove and the St. John's River in Duval County, Florida. The project entails construction of approximately 6,000 feet of low level trestle-type bridge structure and approach spans beginning on the south side of Mill Cove and extending across the Cove to the northern edge of Quarantine Island, an artificial spoil island; 3,000 feet of high level bridge crossing the main channel of the St. John's River; and northern approach spans touching down on Dame Point on the northern shore of the St. John's River. In order to construct the proposed project, JTA is required to obtain a water quality permit and certification from DER. JTA filed its application with DER, accompanied by supporting data, including several studies performed by professional consultants. After review of the application, DHR filed notice of its intent to issue the requested water quality permit and certification, and Petitioners filed a timely request for a hearing pursuant to Section 120.57(1) Florida Statutes, to oppose the issuance of the permit and certification. Petitioners are various groups and individuals concerned about water quality in the St. John's River and the Jacksonville area. Petitioners' standing to seek relief in this proceeding was stipulated by all parties. Construction of the project will result in: filling of approximately .07 acres of wetlands to construct the south abutment on the shore of Mill Cove; dredging of approximately 185,000 cubic yards of material from Mill Cove to create a 4,400 foot long, 190 foot wide barge access channel, with a five foot navigation control depth parallel to the low level portion of the project; temporary filling of approximately .3 acres of wetlands above mean high water on the south shore of Quarantine Island to provide construction access to the island, which area is to be restored upon completion of construction; construction of a diked upland spoil containment site approximately 31 acres in size above mean high water on Quarantine Island to retain all dredge spoil associated with the project; construction of a temporary dock at the northern end of Quarantine Island for access and staging purposes, which is to be removed on project completion; and filling of approximately 16,000 cubic feet of material waterward of mean high water for rip-rap protection around main piers in the St. John's River. Dredged materials will be removed by hydraulic dredges. The St. John's River and its tributaries have been designated Class III waters by DER in the project area. The project involves dredging below mean high water and filling above mean high water, and is a dredge-and-fill project for purposes of Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, and is regulated by DER. The project is an element in a proposed eastern bypass around the City of Jacksonville. It is expected that, as a result of the project, existing area industry will receive more efficient transportation service, commuter trip miles from southeastern Jacksonville to northern Jacksonville will be reduced, transportation routes to education facilities will be improved, and tourist traffic will be routed around downtown Jacksonville, reducing miles traveled to nearby beach resorts and thereby relieving downtown congestion. The benefits to costs ratio of the project appears positive and beneficial to Duval County and Jacksonville, in that for every dollar spent to construct the project, $2.80 could be returned to the community in the form of increased economic activity and more efficient transportation. Testimony clearly established that the state waters in the project area are currently severely degraded and are not likely to meet Class III water quality standards. Violations of Class III standards for dissolved oxygen and some heavy metals, such as mercury, presently exist as background conditions in the St. John's River and Mill Cove. Further, a water quality analysis performed by DER in the project area indicates high background concentrations of heavy metals and PCB's in both the water column and sediments in the project area. When the pro posed project is analyzed within the context of these existing background water quality conditions, it appears highly unlikely that any impact from the project will further degrade existing conditions. The project as currently designed includes plans for total containment of spoil material resulting from dredging activity on the upland portions of Quarantine Island. There will be no direct discharge of dredge $materials from this containment area into the receiving waters of the state. JTA performed a water and sediment analysis of the project area, the purpose of which was to determine the existence and concentrations of specific pollutants that could adversely impact Class III waters if reintroduced into the aquatic system. JTA employed a consultant whose analytical program was designed in consultation with DER and complied with all standard testing procedures required by Rule 17-3.03, Florida Administrative Code. This analysis identified three primary-project activities where control of toxic and deleterious materials was critical: turbidity control; upland spoil containment; and direct discharge of spoil water to state waters. Sediments in the Mill Cove area are extremely fine and may be resuspended in the water column in quantities that could violate state water quality standards if dredging is done improperly. It appears from the evidence that any turbidity problem can be avoided by employing silt curtains and hydraulic dredging during channel excavation. Silt curtains should adequately retain turbidity below levels which would violate state water quality standards, in view of the fact that the JTA study hypothesized a "worst-case" condition for projecting turbidity and pollutant concentration by assuming no upland spoil containment, silt curtains or reasonable mixing zone. Although use of silt curtains and hydraulic dredging cannot absolutely guarantee zero-discharge of suspended sediments from the dredging area, the proposed system of turbidity control is adequate to provide reasonable assurance of non-violation of state water quality standards. Due to the existing toxic background conditions in Mill Cove, DER imposed a permit condition requiring spoil from dredging activities to be completely contained in an upland landfill-type site, with no overflow that could allow effluent to return to waters of the state. The upland dike system proposed in the project application is designed to retain all spoil material and water without direct discharge into state waters. Testimony established that the proposed dike system is designed to hold far more spoil material than the proposed project will generate. Although the dike system is to be constructed from dredged material previously deposited on Quarantine Island, it appears from the testimony that these materials were dredged from the main channel of the St. John's River and are cleaner and sandier in character than sediments in the Mill Cove area. The dike system, in conjunction with natural percolation and evaporation, is adequately designed to retain dredge spoil on the upland portion of Quarantine Island, and can reasonably be expected not to release toxic and deleterious substances into receiving waters of the state. It is also significant that a condition of the requested permit requires project water quality monitoring to afford continuing assurance that the project will not violate standards contained in Chapter 17-3, Florida Administrative Code. These standards and the conditions required to achieve them have been included in DER's letter of intent to issue the permit for this project. It is specifically concluded from the evidence that project dredging will not release toxic and deleterious substances into Class III waters in violation of state water quality standards, and that project dredging in Mill Cove incorporates reasonable safeguards for spoil disposal and turbidity control so as to assure non-violation of state water quality standards. JTA plans to use a direct discharge method to dispose of storm water from the bridge. Storm water will fall through 4-inch screened holes called "scuppers" placed at regular intervals along the bridge surface directly into either Mill Cove or the St. John's River. JTA was required to provide in its application reasonable assurance that storm water runoff from the Project would not exceed applicable state standards for turbidity, BOD, dissolved solids, zinc, polychlorinated biphenols, lead1 iron, oils or grease, mercury, cadmium and coliform. To this end, JTA submitted a study entitled Effect of Rainfall Runoff from Proposed Dame Point Bridge on Water Quality of St. John's River. This study analyzed the chemical composition of storm water runoff from an existing bridge, comparable in both size and design, to the proposed project, which crosses the St. John's River south of the City of Jacksonville. This study adequately established that storm water runoff into the St. John's River across the length of the proposed bridge will not degrade the water quality of the St. John's River below current water quality standards. All but three of the parameters tested in the study were within standards contained in Chapter 17-3, Florida Administrative Code. The remaining three pollutants were either not automobile-related, or would not violate applicable water quality standards after a reasonable opportunity" for mixing with receiving waters. One of these pollutants, mercury, is not automobile-related, and the concentration of mercury discovered in bridge runoff test samples was essentially the same as that measured in rainfall samples. The sampling for mercury was performed using the ultrasensitive "atomic absorption" method, which is capable of measuring tenths of a part per billion of mercury. Another method, the "Dithizone" method, is a technique recognized as effective by DER, and would have, if utilized, yielded a result within the "none detectable" standard contained in Rule 17-3.05(2) , Florida Administrative Code. As to the remaining two pollutants, coliform and lead, testimony established that a dilution rate of 400 to 1, after mixing with receiving waters, would not result in violation of applicable Class III water standards. Testimony also clearly established that water circulation in the project area would result in the requisite dilution ratio of approximately 400 to 1. The storm water runoff study was performed on a bridge similar in all important characteristics to the proposed project, and therefore validates the scientific methodology utilized to determine the expected impact of runoff from the proposed project on water quality in the St. John's River. The applicant has provided in its permit application the best practicable treatment available to protect state waters in the design of both the low and high level portions of the proposed bridge. Extensive research and analysis of design alternatives for both the low and high level portions of the bridge were undertaken by JTA and its consultants prior to selecting the proposed design for the bridge. JTA prepared and submitted to DER, as part of the application process, a document entitled Summary of Construction Techniques in Mill Cove, Dame Point Expressway. This document analyzed and summarized the available construction and design alternatives for the low level trestle portions of the project. The analysis included consideration of overhead construction, construction from a temporary wooden structure parallel to the project, and construction from barges using a shallow channel parallel to the project. The design chosen will cost more than one million dollars less than the next alternative, and will cut construction time by two years over the next alternative design. Given the demonstrated need for the proposed project, the already degraded water quality in the project area, the safeguards for water quality contained-in the project design, and the savings to be realized in both cost and time of construction, the design presently contained in the application is the best practicable. Both Petitioners and JTA have submitted proposed findings of fact. Petitioners' Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's Proposed Findings of Fact numbered 1 through 7 have also been substantially adopted. To the extent that proposed findings of fact submitted by either Petitioners or JTA are not adopted in the Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
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.
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
