The Issue The issue in this case is whether the State of Florida Department of Environmental Regulation (DER, or the Department) should grant the request of Medico Environmental Services, Inc. (Medico) for a one-year extension of the expiration date for air construction permit AC52-184546 for a biological waste incinerator located at 13200-58th Street North, Clearwater, Florida.
Findings Of Fact The Prior and Related Proceedings.-- Medico holds an air construction permit issued by the DER on March 8, 1991, for the construction of a biological waste incinerator in Pinellas County, Florida. The permit contains general and special conditions, including prohibitions against the incineration of non-exempt amounts of radioactive and hazardous wastes, a requirement that all operators be trained in a DER-approved training program, and a requirement that the facility undergo compliance testing after it is constructed to assure that its operation complies with emission standards established by DER rule. Several weeks after the grant of the air construction permit, on March 29, 1991, the DER changed the equipment model number on the permit, but the change in model number represented no change in the actual equipment described in the application. Local government building and construction permit procedures, and negotiations with potential investors, delayed construction of the facility. By letter dated November 14, 1991, Medico requested an extension of the expiration date of the permit from January 7, 1992, to January 7, 1993. No other change in the permit was sought. On or about December 6, 1991, the Department issued a second air construction permit for a biological waste incinerator in Pinellas County to Bayfront Medical Center (Bayfront). Bayfront has since requested two extensionns on the expiration date of its permit. The second request is currently pending challenge in Division of Administrative Hearings Case Nos. 92- 6879 and 92-6880. The Applicant and Principals.-- Medico is a corporation consisting of two fifty percent shareholders: Gerald Hubbell; and Robert Sheehan. Hubbel operates a funeral home and Bay Area Crematory, Inc., in Pinellas County; he has less than 50 percent ownership of those businesses. Previously, Sheehan co-founded a medical waste incineration facility in New York known as Medi-Waste, Limited, of which he was one-third owner. In 1986, he sold the company, and it merged with Medi-Gen, Medical Generation Associates, a wholly owned subsidiary of a company known as Legeis Resources (Legeis). Sheehan held two percent of the shares of Legeis and served as an officer of Medi-Gen until he resigned in 1989. Sheehan does not own more than 50 percent of Medico, and he has not had any interest in any other air construction or air operation permit in the State of Florida. Since March, 1991, he has not held an interest in any other entity involved in medical waste incineration. Air Quality. Medico will be capable of incinerating 2,350 pounds of medical waste per hour, which is about ten percent of Flrodia's medical waste. Pinellas County generates about 75,000 pounds of such waste per day but currently has the capacity to burn only 480 pounds per hour. A computer-generated air dispersion model was run on the theoretical maximum impact of Medico, of Bayfront, and of both facilities, on the ambient air in the affected parts of Pinellas County. The model used was the EPA's Industrial Source Complex, Short Term, Version 2, March, 1992. This model is recommended by the DER and preferred by the EPA. It follows the DER's Guideline on Air Quality Models. Average background ambient air was calculated using monitoring data collected by Pinellas County for the EPA criteria pollutants (sulfur dioxide, nitrogen dioxide, carbon monoxide, ozone, lead, and particulate matter) and for hydrochloric acid in accordance with the requirements of title 40, part 58, of the Code of Federal Regulations, as reported in the DER's 1991 ALLSUM. (According to EPA publications, hydrochloric acid is the only toxic pollutant on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source.) The theoretical maximum impacts of Medico and Bayfront were based on the AP42 emission standards for those kinds of facilities. Meteorological data was taken from the nearest national weather service station (at the Tampa International Airport). The air model shows that none of the National Ambient Air Quality Standards for any of the criteria pollutants would be exceeded by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the average ambient air in the affected parts of Pinellas County. (Both Total Suspended Particulate (TSP) and the newer PM10 category of particulates less than ten microns in size cases, which is more relevant to public health concerns, were considered for particulate matter levels.) Testimony indicates that the National Ambient Air Quality Standards would not be exceeded for any of the criteria pollutants by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the maximum ambient air in the affected parts of Pinellas County. Also, even assuming a "worst case" weather scenario, no problematic toxic pollutants are expected, based on a Pinellas County Department of Environmental Management, Air Quality Division, screening computer model. Lead and hydrochloric acid would be under the EPA's "no threat level" (NTL). (As for the original application, these determinations are based on the scrubber manufacturer's hydrochloric acid efficiency claim of 99.9% and, in the case of lead, on its particulate efficiency claim.) As previously stated, according to EPA publications, there are no other toxic pollutants on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source. The theoretical emissions for the Medico facility are below 100 tons per year, and the facility does not have the potential to emit more than ten tons per year of any hazardous air pollutant, as defined by the EPA. Past Conduct and Reliablily of the Principals.-- On or about March 5, 1991, the temperature in the secondary chamber of the biohazardous waste incinerator then operated by Hubbell dropped below 1800o at the end of a burn, and there was still a small amount of waste in the primary chamber and some small amount of flame still visible in the primary chamber. This violation, however, did not result in visible emissions, which would be an indication that there was a combustion or related problem in the incinerator. On or about March 4, 1991, one of the crematory units operated by Hubbell had visible emissions of 44% opacity. Identical warning letters regarding the March 4 and March 5 violations were sent on March 20 and March 27, 1991. Hubbell respondent by telephone on April 1, and in writing on April 5, 1991. There have been no other violation of Florida Statutes or DER rules since the original construction permit issued. Taking these violations into consideration, the compliance history of Hubbell's facilities does not undermine Medico's ability to give the necessary reasonable assurances. Between October, 1981, and October, 1991, Hubbell's facilities have been guilty of only the following violations: On or about March 25, 1987, Hubbell began to incinerate biohazardous medical waste before he was aware that a special permit for incinerating medical waste, in addition to his permit to operate the crematory, was required by law. On or about August 19, 1988, Hubbell's facility was notified that the Pinellas County Division of Air Quality had received a written complaint about smoke, and that a county permit would be required for the infectious waste incinerator along with retrofitting some controls. On or about October 4, 1989, Hubbell's facility apparently had a visible emissions violation. Three annual operating reports for Hubbell's facilities--for 1981, 1985, and 1989--would be considered late under current policy. There was no evidence whether they were late under the policy in effect at the time the reports were filed. Over the course of those ten years, there is no suggestion in the evidence that any of the other annual operating reports may have been late, and there are no other violations recorded in the Pinellas County compliance contact logs. To the contrary, the records indicate that no violations were found on 15 inspections. Hubbell voluntarily has shut down the old, smaller and less sophisticated medical waste incinerator where some of the recorded violations occurred, pending the construction of the Medico facility. Sheehan has not had an interest in any biohazardous waste incinerators in the State of Florida, other than the Medico application, and has not had a controlling interest in, or operational role in, any entity operating a medical or biohazardous waste facility in any state since June, 1989. Although, under the prehearing rulings, it would not even be relevant to this proceeding, the only evidence of any violations by any entity in which Sheehan had a controlling interest in, or operational role in, that operated a medical or biohazardous waste facility in any state, at any time, was evidence of two New York State Department of Environmental Conservation ash container violations and one failure to close up the back of the building housing an incinerator in October, 1988.
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 extending the expiration date for air construction permit AC52-184546 for one year from the entry of the final order, subject to a DER determination that construction did not begin by March 20, 1992, and that the Chapter 92-31 moratorium applies. RECOMMENDED this 6th day of January, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0851 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. I.1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, argument and subordinate. Accepted and incorporated. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, rejected as not supported by the evidence and as contrary to facts found. Fifth sentence, accepted but subordinate to facts contrary to those found. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but subordinate to facts contrary to those found. (He raised questions but had no answers; other witnesses satisfactorily answered the question.) Last sentence, rejected as contrary to the greater weight of the evidence and to the facts found. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Also, state law and regulations govern some aspects of the handling of these wastes. First two sentences, accepted but subordinate and unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence and to facts found. (Reasonable assumptions can be made, in accordance with EPA publications, based on the nature of the facility.) Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. Rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First sentence, accepted but accepted but subordinate to facts contrary to those found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First two sentences, accepted and incorporated in part (another reason was that the application passed a screening model both initially and on the extension request and that most of the toxics would not be expected to be generated from this source), but res judicata, and unnecessary. Third sentence, accepted and incorporated. Fourth and fifth sentences, accepted but res judicata, subordinate to facts contrary to those found, and unnecessary. II.9.-10. Rejected as contrary to facts found and to the greater weight of the evidence. III.1.-2. Rejected as being conclusions of law. Medico's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4. Accepted but subordinate and unnecessary. 5.-7. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. Irrelevant and unnecessary. 11.-23. Generally accepted but largely subordinate. Incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Generally accepted, but largely res judicata, irrelevant, subordinate and unnecessary. Accepted and incorporated. 30.-31 Accepted but subordinate and unnecessary. Generally, accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted but subodinate and unnecessary. 34.-35. Generally, accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 38.-43. Accepted and incorporated. 44.-45. Accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but largely subordinate and unnecessary. Some, irrelevant. 48.-49. Accepted but subordinate and unnecessary. 50. Accepted but irrelevant, subordinate and unnecessary. DER's Proposed Findings of Fact. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. The law was signed on March 20, 1992. Otherwise, accepted and incorporated. 11.-15. Accepted but subordinate and unnecessary. COPIES FURNISHED: Adrien W. Helm, Esquire 925 Fourteenth Avenue North St. Petersburg, Florida 33705 Sandra P. Stockwell, Esquire Douglas L. Stowell, Esquire Post Office Box 11059 Tallahassee, Florida 32302 W. Douglas Beason, Esquire Assistant General Counsel Dept. of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? use of the waters of St. Lucie County is hearsay. Thus, the only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Proceeding as amended. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
The Issue The appellant contends that the Planning Commission "did not base its decision on specific standards or criteria [set forth in the zoning regulation] as required. Nor was there any competent substantial evidence presented that would support the Planning Commission's findings."
Findings Of Fact Based upon the evidence of record submitted with this appeal, the findings of fact of the Planning Commission are rejected and the following substituted: The proposed use constitutes a marina pursuant to section 9.5-4(M-5) of the Monroe County Code, Land Development Regulations, and it must, therefore, be reviewed as a major conditional use. The proposed development complies with all applicable Monroe County land development regulations. The proposed development is limited to two fueling docks, one 9' x 16'4" and the other 13' x 12'8", and one fueling pump. The proposed development does not include provisions for boat storage, boat ramps, or liveaboard docking. The proposed development is not expected to generate additional vehicular traffic nor, as a result, demand additional on-site vehicular parking due to its exclusively water-oriented nature. The proposed development does not include provisions for additional outdoor lighting. The proposed development includes provisions for a five-year water quality monitoring program which contains adequate recommendations for spill containment, including provision of a containment kit and use of absorbent carpeting on the dock surface, as well as corrective measures to be undertaken by the applicant in the event of water quality deterioration. Coordination with the United States Environmental Protection Agency is necessary to insure that the proposed water quality monitoring program follows the guidelines of this agency. The proposed development is located in the vicinity of a designated critical habitat of the American crocodile, and the presence of the West Indian manatee in the area is documented. The Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service have offered recommendations to mitigate the secondary impacts of the proposed development on these species of endangered wildlife, including the installation of an educational display and restrictions on the provision of additional marina facilities. Additional conditions and restrictions are appropriate and may be imposed pursuant to sections 9.5-61 and 9.5-63 of the Monroe County Code, Land Development Regulations. Limitations are particularly necessary to minimize the impacts of the proposed development upon neighboring residential uses and the canal, in consideration of the water-oriented nature of the use.
The Issue The issues are whether respondents’ motions to dismiss the amended petitions should be granted on the ground they were not timely filed, or whether the time limitation for filing a request for hearing was equitably tolled.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Judge Ray and Gerra Gatlin (petitioners or Gatlins), own a parcel of real property in the central portion of Baker County, Florida, generally located to the north of U. S. Highway 90 between Glen St. Mary and Macclenny, Florida. Respondent, St. Johns River Water Management District (District), is the state agency charged with the responsibility of issuing Water Resource Management (WRM) and Management and Storage of Surface Water (MSSW) permits within its boundaries. Respondent, Department of Transportation (DOT), is a state agency charged with the responsibility of maintaining the state highway system. On April 27, 1993, DOT filed two applications with the District seeking MSSW and WRM permits for a road widening and bridge replacement project on State Road 10, also known as U. S. Highway 90, in Baker County. After notices of receipt of application and intent to grant the applications were published in a local newspaper on June 3 and July 22, 1993, respectively, and no requests for a hearing were received, the District issued the two permits on August 10, 1993. On December 20, 1996, or 1,216 days after the permits had been issued, petitioners filed their petitions for administrative hearing to contest the issuance of the permits. The petition challenging the MSSW permit has been assigned Case No. 97-0803 while the challenge to the issuance of a WRM permit has been assigned Case No. 97-0804. As amended on February 10, 1997, the petitions generally allege that the Gatlins were not given actual notice of the WRM application as required by a District rule, DOT supplied inaccurate or false information in the applications as to the ownership of the property on which a portion of the work was to be performed, and the District's notice was confusing and misleading. Because of this, they contend the time limitation for challenging the permits was equitably tolled. Motions to dismiss the amended petitions on the ground they are untimely have been filed by the District and DOT, and they are the subject of these proceedings. Events Prior to Issuance of the Permits As early as 1990 or 1991, the DOT began planning for certain improvements to State Road 10 from County Road 125 in Glen St. Mary, Florida, east to State Road 121 in Macclenny, Florida. The work involved the widening of the road from two to four lanes and replacing an existing bridge. Excluding the work within the two municipalities, the total length of the project was less than two miles. On April 23, 1991, the DOT sent all property owners along U. S. Highway 90 a letter advising that a public meeting would be held on May 16, 1991, to discuss the proposed improvements. Although DOT records indicate that petitioners were on the mailing list, petitioners deny that they ever received a letter. In addition to a personal letter to each owner, notice of the meeting was published in a local newspaper. Another meeting with owners of property adjacent to S. Highway 90 was held on August 13, 1992, concerning the proposed project. Although a letter was sent to all property owners on July 21, 1992, advising that such a meeting would be held, petitioners deny that they ever received one. A notice of the meeting was also published in a local newspaper. The MSSW permit On April 23, 1993, DOT filed with the District an application, with various attachments, seeking the issuance of a MSSW permit. If approved, the permit would authorize DOT to construct surface water works, including the treatment of stormwater runoff by wet detention ponds, on an approximately eleven acre site. The application described the project as follows: The proposed facility typical section will be a four-lane roadway with a center turn lane through Glen St. Mary and unincorporated Baker Co. [T]hrough Macclenny, the typical section will be a two-lane roadway with a center turn lane. It further described the location of the project as follows: The segment of SR 10 (US 90) presented in this application begins approximately 500 feet west of the intersection of SR 10 and CR 125 and runs east to the intersection of SR 10 and SR 121. The project is located in Section 36, Township 2 south, and Range 21 east and Sections 31 and 32, Township 2 south, and Range 22 east in Baker County. In answer to a question regarding who owned the works to be constructed, DOT identified itself as the owner. The application did not require, however, that an applicant certify that it was the present owner of the property on which the proposed works were to be constructed. In fact, DOT followed its standard practice of not filling in the areas on the application form that asked for "Project Acreage" and "Total Acreage Owned" because it did not know exactly how much property it would need to acquire through exercise of its power of eminent domain until the District had approved the design of the proposed surface water works. It was clear, however, that DOT had the ability and intention to acquire whatever property was needed through eminent domain proceedings. Attached to the application were certain sketches. They did not depict the storm detention pond which was to be built on the Gatlins' property. Under an applicable District rule and statute, the District was required to give actual notice of the application only to persons who had previously filed a written request for such notice. Because petitioners had not made such a request, they were not given actual notice. In the absence of a written request, the statute allows constructive notice of the agency’s intended action to be provided by publication in a newspaper of general circulation in the county in which the work is to be performed. The specific requirements for this notice are found in Rule 40C-1.511(5), Florida Administrative Code. They include "a brief description of the proposed activity and its location," "location of the application," "statement of the District's intended action," "scheduled date of Board action," and "notification of administrative hearing opportunity." On July 22, 1993, the District published notice of its intended agency action in The Baker County Press, a weekly newspaper of general circulation published in Macclenny, Florida. The notice read, in pertinent part, as follows: The District gives notice of its intent to issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for the CONSTRUCTION OF A SURFACE WATER MANAGEMENT SYSTEM ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file containing the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative hearing is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with section 120.57, F.S. Petitions must comply with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C- 1.521 and be filed with (and received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions must be filed within fourteen (14) days of publication of this notice or within fourteen(14) days of actual receipt of this intent, whichever occurs first. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification as to the right of a hearing. Although petitioners acknowledge that they never read the notice, they contend that, even if they had read it, the notice was nonetheless misleading and confusing in several respects. First, they point out that the legal notice identified the receiving waterbody as the St. Mary's River. The application, however, identified the receiving water as the South Prong St. Mary's River whereas the technical report of the District staff identified the receiving water as the Little St. Mary's River. The South Prong St. Mary's River and the Little St. Mary's River are the same river, and it eventually flows into the St. Mary's River approximately six miles north of petitioners' property. Therefore, the notice is technically correct since the larger St. Mary's River is the ultimate receiving water for the smaller tributary. Even if the notice was in error in this respect, however, for the reasons cited below, the error was immaterial and would not mislead or confuse readers. The notice provides further clarification on the project's location by stating that the project encompasses the "construction of a surface water management system associated with the widening of SR 10 (U.S. 90) from CR 125 to SR 121." This clearly alerts the reader that the project is on or near U. S. Highway 90 between Glen St. Mary and Macclenny, a short stretch of road less than two miles in length. Given this description, a reasonable person would not assume that the work would take place on the St. Mary's River, six miles to the north, as petitioners suggest. Petitioners also point out that the notice identified the location of the project as "Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East," an area petitioners say encompasses some 1,900 acres of land. Because the MSSW project will actually involve only 11 acres of land, they contend the notice is misleading. Although the notice identifies three sections, and each section is one square mile, the notice alerts the reader that the project will be confined to the "widening of S. R. 10 (U. S. 90)" between Glen St. Mary and Macclenny, a relatively short stretch of roadway. Finally, the notice provided that a copy of the application was on file at the "appropriate field office" of the District should any member of the public desire more detailed information. Petitioners' property lies within Sections 31 and 36 and would therefore be affected by the application. Although they reside in Baker County, petitioners did not subscribe to The Baker County Press, and therefore they did not read the legal advertisement. Accordingly, a request for a hearing was not filed by petitioners by the August 10 deadline. When no requests for a hearing were filed within the fourteen day time limitation, the District took final agency action on August 10, 1993, and issued MSSW permit number 4-003-0010G. The WRM permit On April 27, 1993, DOT filed with the District an application, with attachments, seeking the issuance of a WRM permit. If approved, the permit would authorize the excavation and filling (dredging and filling) associated with the bridge replacement over the Little St. Mary's River, also known as the South Prong St. Mary's River, midway between Glen St. Mary and Macclenny on U. S. Highway 90. The dredge and fill project encompasses approximately one-half acre of land. The WRM application contained the same description and location of the project as did the MSSW permit application. Question 14 on the application form required an applicant to certify as to ownership of the property. The applicant could either indicate that it was the record owner of the property on which the proposed project was to be undertaken, or it could indicate that it was not the record owner, but it intended to have the requisite ownership before undertaking the proposed work. DOT checked off the box which indicated that it was the record owner. At hearing, a DOT representative agreed that this was an incorrect response since around 8,953 square feet of the land on which the dredging and filling would take place was then owned by petitioners. In hindsight, the DOT witness says he probably should have checked off both boxes since DOT owned most of the property and would acquire the remaining part through eminent domain proceedings before the project began. Acquisition of the land was clearly within DOT's power and authority. There is no evidence that DOT provided the information with the intent of misleading the District, or that the ownership information affected the District's decision. In 1988, the Department of Environmental Regulation (DER), now known as the Department of Environmental Protection, delegated its dredge and fill permitting authority to water management districts. In carrying out that delegation of authority, the districts were required to follow all applicable DER rules. One such rule, Rule 62-312.060(12), Florida Administrative Code, required that the District forward a copy of the application to and request comments from the adjacent waterfront property owners unless the number of owners was so extensive that personal notice was impractical. Petitioners own adjacent waterfront property, and it was not shown that the number of waterfront owners was so extensive that personal notice was impractical. To implement the above rule, question 5 on the application form required the applicant to identify all adjacent waterfront owners. DOT answered "See Attachment." At hearing, the individual who prepared the application "believed" that a list was attached to the application when it was filed with the District, but he could not locate a copy of the list in his file. The application was the first dredge and fill permit application for Baker County processed by the District. When the application was received by the District, a clerical employee reviewed the application to determine if it was complete. If an item was missing, the clerk was instructed to note the missing item on an "initial checkoff sheet." In this case, a "very, very cursory look" was made, and no box on the checkoff sheet was marked. This would indicate that the list was attached to the application. After this review was made, the application was sent to the technical staff for review. Whether the attachment was ever received by the District, and then lost or misplaced, is conjecture. In any event, a District witness acknowledged that there may have been a "mix-up" during the initial review. Because the District had no attached list, it gave no actual notice to adjacent owners, including petitioners, prior to publication of the notice. Therefore, the rule requiring actual notice on this type of application was not satisfied. Except for this instance, the District is unaware of any other occasion when a list of adjacent waterfront property owners, through inadvertence, was lost or not provided. On July 22, 1993, the District published notice of its intent to issue a permit in The Baker County Press. The notice read, in pertinent part, as follows: The District gives notice of the Intent to Issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for EXCAVATION AND FILLING ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file pertaining to the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative proceeding (hearing) is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511, F.A.C. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C-1.521 and be filed with (received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions for administrative hearing on the above application must be filed within fourteen (14) days of publication of this notice or within fourteen (14) days of actual receipt of this intent, whichever first occurs. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification of hearing opportunity. Even though they did not read the notice, petitioners contend that it was "confusing and misleading to any readers." First, they point out that the legal notice identifies the receiving water as the St. Mary's River. Both the application and technical report of the District staff, however, identified the receiving water as the South Prong St. Mary's River. The South Prong St. Mary's River flows north and south and crosses under U. S. Highway 90 at the bridge replacement site. It eventually flows into the St. Mary's River, which is approximately six miles further north and forms the boundary between Florida and Georgia in that area. Therefore, the notice was technically correct since the St. Mary's River is the ultimate receiving water from the smaller tributary. Even if the notice erred in this respect, the error was immaterial and would not mislead the reader. This is because the cited sections, township, ranges and road being improved are all at least five miles south of the St. Mary's River, and thus the notice could not lull readers into believing that the project would actually be closer to that river, some six miles to the north. Petitioners also point out that, even though the dredge and fill project encompasses only one-half acre, the notice identifies the project as being located in Sections 31, 32, and 36, Township 2 South, Ranges 21 and 22 East, a tract of some 1,900 acres. These sections, township and ranges are the same ones included in the legal description of the then existing right-of-way for U. S. Highway 90 owned by DOT and which was attached to the application. While it is true that each section is one square mile, the actual work site within the sections was narrowed considerably by advice that the work would be "associated with the widening of SR 10" between Glen St. Mary and Macclenny. Given this information, a prudent person owning land on U. S. Highway 90 between the two municipalities would be alerted that the project might well impact his property. Finally, the notice provided that a copy of the application was on file for review if any member of the public desired more specific information. As a corollary to the above argument, petitioners contend that the notice implies that dredge and fill work will only be performed on DOT's existing right-of-way since the sections, township and ranges track the legal description of DOT's right-of-way along U. S. Highway 90. Again, however, only a "brief description" of the project's location is required, and the above description in the notice satisfies this requirement. Although petitioners reside in Baker County, they did not subscribe to the local newspaper, and therefore they did not read the legal advertisement. Accordingly, they did not file a request for a hearing. When no requests for a hearing were received within fourteen days after publication of the notice, on August 10, 1993, the District issued WRM permit number 12-003-0001G. C. Events After Issuance of the Permits On September 22, 1994, DOT sent to petitioners, by certified mail, a Letter of Notification regarding DOT's intention to acquire the interest in eight parcels of the Gatlins' property for the road improvement project. The letter was received by Gerra Gatlin on September 23, 1994. While the letter did not specifically state that a detention pond and bridge replacement project would be built on the Gatlins' property, it explained that DOT was currently planning the construction of a "highway facility" on State Road 10 and that its records indicated that petitioners owned property within the area which was needed for right-of-way on this project. The letter went on to describe the project in general terms, and it referenced parcel 140 which was owned by the Gatlins. On a separate parcel information sheet attached to the letter, parcel 140 was divided into three parcels: 140A, 140B, and 140C. The sheet noted that parts B and C were designated as "water storage" areas. Parcel 140B is 10.727 acres in size and will hold the stormwater detention pond currently being constructed by DOT. A portion of the dredge and filling related to the bridge replacement project will occur on parcel 140C. Ray Gatlin acknowledged that he became aware of a "pond" when he initially reviewed the packet, but he was not sure in which part of parcel 140 the pond would be located since the "printing was off" on the drawings, and he could not find parcel 140C. Therefore, he immediately hired a Jacksonville attorney, Robert S. Yerkes, to represent him and his wife in the condemnation matter. On October 31, 1994, Yerkes sent a letter to DOT requesting a copy of "the current right way map and construction plans, as well as the present schedule for aquisition and construction." On November 17, 1994, DOT sent Yerkes the right-of-way maps but noted that "[c]onstruction plans are still not available." Whether Yerkes requested the construction plans after that date is not of record. On May 22, 1995, a DOT right-of-way specialist met with Yerkes and Ray Gatlin regarding the acquisition of the Gatlins’ property. On July 19, 1995, DOT initiated an action in eminent domain against petitioners, and several other landowners, by filing a petition in the Circuit Court of Baker County. Among other things, the petition sought to condemn parcels 140A, 140B, and 140C owned by petitioners. An Order of Taking was entered by the court on September 6, 1995, which conveyed fee simple title of parcel 140, and its parts, to DOT. When Yerkes "didn’t get the job done," the Gatlins hired new counsel, who made an appearance on July 31, 1996. Just prior to the appearance of new counsel, and because of "a problem with the assessment," the Gatlins hired an environmental consultant, Peter M. Wallace, to verify whether DOT had correctly told them that no jurisdictional wetlands existed within the parcel being condemned. At this time, the Gatlins were in a dispute with DOT over the value of their property. After determining that wetlands existed on the parcel, Wallace made inquiry in late July 1996 with a District employee, Christine Wentzel, to ascertain if any permits had been issued to DOT for a project on U. S. Highway 90 between Glen St. Mary and Macclenny. Wentzel was unaware of any permits being issued, but she referred Wallace to Helen Cortopassi, who would have reviewed the applications three years earlier. Cortopassi told Wallace that no permits relating to this project had been issued. Because Wallace believed that the storm detention pond would impact wetlands, and therefore required a review by DER or the United States Army Corps of Engineers, he made similar inquiries with those two agencies regarding the issuance of permits. He was assured that those two agencies had not issued permits. In late September 1996, Cortopassi telephoned Wallace and advised him that a further review of her files revealed that two permits had been issued for the project. Because Wallace had inquired about permits for a project on U. S. Highway 90, and Cortopassi had created a file for the project under State Road 10 (rather than U. S. Highway 90), she had failed to discover them when Wallace first made his inquiry two months earlier. On October 15, 1996, Wallace went to the DOT office and reviewed its files pertaining to the project. He found copies of the issued permits and a set of construction plans which revealed a pond. A public records request filed by the Gatlins' counsel with DOT in September 1996 was later granted, and copies of the applications were eventually obtained from DOT on December 9, 1996, or almost three months after the request was made. Within fourteen days thereafter, or on December 20, 1996, the Gatlins filed their initial requests for a hearing. DOT did not begin work on the project until March 1997, or some three months after the requests for hearing were filed. Photographs received into evidence show that, in April 1997, some excavation work was being done around the bridge site. Work has continued during the pendency of this proceeding. At least a small portion of the storm detention pond will be built in wetlands. The District made no review of the wetlands impact associated with the pond. Had this been done, a disclosure of the pond in the dredge and fill permit application would have been required. Petitioners contend that, if actual notice of the WRM had been given, as required by rule, and a wetlands impact performed, in this way they would have had actual notice of the MSSW application by simply reviewing the WRM application. The District contends, however, that the content and manner of notice would not have changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the motions to dismiss and dismissing the amended petitions for hearing in Case Nos. 97-0803 and 97-0804 with prejudice. DONE AND ENTERED this 14th day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 \ COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1997. Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1489 Palatka, Florida 32178-1489 J. Victor Barrios, Esquire 1026 East Park Avenue Tallahassee, Florida 32301-1673 Susan K. S. Scarcelli, Esquire Post Office Box 3399 Tampa, Florida 33601-3399 Nancy B. Barnard, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Francine M. Ffolkes, Esquire Mary S. Miller, Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The parties have raised myriad issues hare. Petitioner has alleged being capriciously and arbitrarily denied its permit because similar treatment plants have been licensed nearby. The parties disagree over whether local Lake County Pollution Control Board rules are applicable to Petitioner's plant. If the rules are applicable, they disagree over their interpretation. The parties further disagree over whether Petitioner has pending an application for a waste water treatment plant operating permit. It is this last issue which is discussed below because it is dispositive of the case.
Findings Of Fact Petitioner operates a waste water treatment plant in Lake County, Florida which serves four motels at the intersection of U.S. Highway 27 and SR 19 immediately to the south of Interchange 27 on the Florida Turnpike. On October 27, 1972, DER issued a construction permit to Petitioner to construct the plant at a design capacity of 250,000 gallons per day (gpd). The treated effluent was proposed to be discharged via a spray irrigation system to the ground water on Petitioner's site. The plant has never operated at capacity. Its normal volume has ranged from between a low of 40,000 gpd to a peak of 140,000 gpd. Petitioner's plant is situated on a 12.5 acre site over a clay hard pan. The hard pan which is immediately below the ground surface prevents adequate percolation of the plant's effluent down to the underlying ground water. During periods of heavy rain the effluent from the plant has breached a retaining dike and flowed directly into a marsh area known as the Little Everglades to the north. Petitioner has submitted four permit applications to the Department. The first, submitted in September of 1972 was for the construction permit already mentioned. The next applications dated October 22, 1973, was for an operation permit. The application indicated that there would be no discharge to surface waters but there would be a discharge to ground waters. The application also indicated that the availability of space for the expansion of the plant was limited to the site at that time. Petitioner later purchased additional land not reflected in this application. The operation permit was never granted by the Respondent. As stated by Mr. Potter, President of Lake County Utilities, Inc., "In the fall of 1973, I made an application as engineer for the utility company to the Florida DPC [Department of Pollution Control] and to Lake County for an operation permit. That permit was denied by the Department on the ground that we had not satisfied Lake County as to the total containment of our effluent." Subsequently on August 30, 1976, Petitioner submitted a construction permit application to DER for permission to add a 1.32 acre oxidation-polishing pond, to regrade and regrass the existing spray irrigation field, to construct a 0.40 acre denitrification pond and to add a nutrient uptake. No increase in the design capacity was proposed. On that application Petitioner indicated that there would be a discharge to the surface waters of the state. In answer to that part of the application which asked for proposed drainage path of the effluent Petitioner stated, "From treatment plant to 'on-site' ponds to 'on-site' grassy pond and marsh would overflow to ajacent Florida DOT [Department of Transportation] borrow pit: thence via developed drainage waste to the 'Little Everglades' swamp: then, via developed canal and ditches and through natural ponds and marshes to 'Little Lake Harris' and ultimately the Atlantic Ocean." This permit was denied by DER because the Lake County Pollution Control Board did not approve the plan. Finally on September 29, 1978, Petitioner applied for another construction permit. Thee construction would include: Construction of storm water control structures and culverts: Regrading of water and sewer plant sites; Construction of percolation pond "A" and enclosing dikes; and Construction of percolation pond "B" and enclosing dikes. This application was made in response to advice from DER that Petitioner's plant should be in a no discharge condition in order to comply with Lake County Pollution Control rules. On November 2, 1979, the Department issued a Letter of Intent to deny the last permit application because the application was deemed to be incomplete and because the further data which DER requested was not provided. In response to DER's intent to deny the construction permit Petitioner on November 20, 1979, filed its Petition for an Administrative Hearing. Petitioner does not now intend to construct the proposed facilities for which it requested the construction permit in September of 1978. The following colloquy is from the final hearing. Mr. Stephens Have you-- Can you describe briefly the nature of the changes proposed in your 1978 construction permit application? Mr. Potter 1978 construction permit application on nominally the five acre parcel to create a diked pond or lake. Mr. Stephens Uh-huh. Mr. Potter Solely that. The part on the nominally two and a half acre parcel, give or take, was to create a deep percolation pond in which I proposed digging through the clay to the sand and shell below. Mr. Stephens Uh-huh. Mr. Potter So that waters that entered that pond, A, because of its depth, would denitrify and release nitrogen contents to the atmosphere; and, the water would, because of its hydraulic head in relation to the soil below, would push its way into the soils below. Mr. Stephens Uh-huh. Mr. Potter But in the event I could not dispose of the water through that form of percolation, it would overflow into the five acre diked area. And thereby I hoped to satisfy Lake County and the D.E.R. and solve this lingering festering problem. Mr. Stephens Uh-huh. You are the Petitioner in this case. Is it your desire or intention to complete those. . .that construction? Mr. Potter Now that I have been made aware of the law, the law of Chapter four oh three, the rules of Florida D.E.R. and become clear as to the ordinances adopted by the County Commission and the Lake Pollution Board of Lake County as to Class 3-B waters, I have no intention of squandering my money, and, in effect, the money of my customers, in such a wasteful pursuit. Mr. Stephens So you're saying here under oath you don't intend to perform that work even if granted a permit? Mr. Potter Not shy of a court order. As the result of Mr. Potter's testimony on behalf of the Petitioner at the final hearing, it is found that Petitioner has withdrawn its September 1978 application for a construction permit. There is not now pending before the Department of Environmental Regulation a valid permit application for the Petitioner to operate its waste water treatment plan. On May 9, 1980 Lake County Utilities, Inc. served Petitioner's Fourth Interrogatories to Respondent which asked by Interrogatory 10: Please state when and by whom the Department of Environmental Regulation has caused field studies to be made and samples to be taken out of the waters of Lake County (and specifically the geographical vicinity of U.S. 27 - S.R. 19 - Fla. Turnpike) periodically and in a logical geographic manner so as to determine the levels of water quality of the waters as such studies and sampling is within the powers and duty of the Department as mandated by the Florida Legislature in Chapter 403 of the Laws of Florida. (emphasis in original) The Department responded: 10. The Department conducts sampling in the waters of Lake County in conjunction with individual permit applications and not on a systematic basis throughout the County. Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.
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 dismissing the Amended Petition for Administrative Hearing without prejudice, however, to the filing of a new application by Petitioner for a waste water treatment plant operating permit. DONE and RECOMMENDED this 12th day of May, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 21st day of March, 2014.
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of April, 1983.
Findings Of Fact The Sound Transportation Planning Coalition, Inc., and The Florida Lung Association have standing to bring this action. This action is brought pursuant to Section 120.56, Florida Statutes, and challenges the validity of the repeal of Rule 17-2.04(8), Florida Administrative Code. On or about July 8, 1977, the Department of Environmental Regulation published a notice of rule making for adoption of proposed amendments to Rule 17-2.04(8), Florida Administrative Code, in the Florida Administrative Weekly. This Publication included notice of a hearing to be held by the Environmental Regulation Commission for the consideration of the adoption of proposed amendments to the subject rule. At least thirty (30) days notice prior to the foregoing hearing by the Environmental Regulation Commission was also given in newspapers of general circulation around the state. For the purposes of this proceeding the parties have stipulated that the Department of Environmental Regulation complied with the provisions of Section 120.54(1), Florida Statutes, regarding notice of hearing on the proposed rule which was an amendment to an existing rule. The Environmental Regulation Commission took action on August 11, 1977, with regard to the matters pertinent to this Proceeding and no notice other than that referred to above in paragraph 3 pertinent to the action taken by the Environmental Regulation Commission was given by the Department of Environmental Regulation. The rule making action proposed by the Department of Environmental Regulation was the amendment of Rule 17-2.04(8), Florida Administrative Code, which amendment, according to the Department's notice, was designed to make the indirect source permit system workable and yet maintain ambient air quality standards for carbon monoxide. The amendment was expected to reduce the number of permit reviews required and to limit the evaluation for each indirect source to one pollutant, carbon monoxide. The action taken by the Environmental Regulation Commission on behalf of the Department of Environmental Regulation was the complete repeal of Rule 17-2.04(8), Florida Administrative Code. After having considered the proposed amendments to the subject rule it was apparently the decision of the Environmental Regulation Commission that the better action would be the complete repeal of the rule and that is the action they took. The Department of Environmental Regulation prepared an Economic Impact Statement directed to the impact of the proposed amendments to the subject rule. The parties have stipulated that for the purpose of this proceeding only, the Department of Environmental Regulation complied with the provisions of Section 120.54(2)(a), Florida Statutes, with regard to the proposed amendments to the subject rule and the said Economic Impact Statement would have been satisfactory for the adoption of the proposed amendments had they been adopted. No Economic Impact Statement directed to the repeal of the subject rule was prepared. No individual in the Department of Environmental Regulation was instructed to prepare an Economic Impact Statement for the repeal of Rule 17- 2.04(8), Florida Administrative Code. The Department at no time prior to the hearing held by the Environmental Regulation Commission on the proposed amendments to the subject rule, gave specific notice to any individuals that it intended to repeal Rule 17-2.04(8), Florida Administrative Code.
