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FLORIDA BOARD OF PROFESSIONAL ENGINEERS vs RONALD H. WILSON, P.E., 15-002530PL (2015)

Division of Administrative Hearings, Florida Filed:Orlando, Florida May 05, 2015 Number: 15-002530PL Latest Update: Dec. 25, 2024

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MARIE COOK MATIS vs PASCO COUNTY UTILITIES DEPARTMENT AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 92-002488 (1992)

Division of Administrative Hearings, Florida Filed:New Port Richey, Florida Apr. 24, 1992 Number: 92-002488 Latest Update: Jul. 31, 1995

The Issue Whether Pasco County should be granted operating permits for Embassy Hills Wastewater Treatment Plant (WWTP) (Case 92-2489); Hudson WWTP (Case 92-2489); Hudson WWTP (Case 92-2488); and 8 Rapid Rate Infiltration Basins (RRIB) in Northwest Pasco County (Case 93-3091); whether the permit for RRIB should be granted to construct 10 RRIBs rather than 8 (Case 93-3641); whether these facilities can be operated without damage to the area potable and ground water systems; and whether the operating permit should include the provisions of a settlement agreement entered into between Matis, Pasco County and DER dated December 7, 1987. Whether the challenge to these permits was timely filed by Petitioner was resolved prior to the hearing and will not be revisited.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Permit Number DO51-203666 be issued for the operation of Hudson WWTP; that Permit Number DO51-203667 be issued for the operation of Embassy Hills WWTP; and that Permit Number DC51-214670 be issued for construction of the ten Northwest Pasco County RRIBs. DONE AND ENTERED this 22nd day of October, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 22nd day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2488 Proposed findings submitted by Petitioner are accepted except as noted below. Those neither accepted nor noted below were deemed unnecessary to the conclusions reached. 16. Rejected in part. Matis saw the Notice of Intent to issue the permits here at issue published in the Pasco Times on December 23, 1992, and on December 22, 1992, Matis' attorney was furnished a facsimile copy of this notice. A copy was personally delivered to Matis by a DER representative on December 29, 1992. 24. Rejected. 30-32. Rejected as irrelevant. Rejected. DER adopted the proposed findings submitted by Pasco County. Those findings are accepted. Proposed findings submitted by Pasco County and not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached largely because Petitioner Matis challenged only the refusal of DER to include the provisions of the Settlement Agreement in the operation permit for the WWTPs and to grant construction permits for the five RRIBs withdrawn from the petition in 1987 as a result of the Settlement Agreement. COPIES FURNISHED: William W. Deane, Esquire Charles D. Hinton, Esquire Deane & Hinton, P.A. Post Office Box 7473 St. Petersburg, Florida 33734 David M. Caldevilla, Esquire Post Office Box 172537 Tampa, Florida 33672 Francine M. Ffolkes, Esquire Keith Hetrick, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Florida Laws (3) 120.57, 120.68, 403.088

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TOM VISCONTI vs NORTH PENINSULA UTILITIES CORPOTRATION AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 94-000082 (1994)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jan. 06, 1994 Number: 94-000082 Latest Update: May 02, 1996

The Issue Whether or not Petitioners should be ordered to pay reasonable costs and attorney's fees to the Respondent North Peninsula Utilities Corporation, and, if so, the determination of the amounts of costs and attorney's fees.

Findings Of Fact A brief background of the parties' history is important to disposition of the attorney's fees and costs motion. Petitioner Thomas Visconti is a resident of Seabridge Subdivision and is provided with wastewater treatment service by Respondent NPU. His property is not adjacent to NPU's treatment facility and the record does not establish that Mr. Visconti owns or operates any potable water wells within the vicinity of NPU's facility. See Finding of Fact 19, infra., concerning absence of any potable wells that could be affected by rerating the percolation pond. SCA is a homeowner's corporation which does not own property adjacent to the NPU facility, but which allegedly has members who do. The authority of the SCA vice-president to file the initial petition in November 1993 is subject to some conjecture, since the way this was done was because the SCA president informally delegated all duties to the vice-president while the president was out of state and all or most of the members signed the petition. There is no evidence the SCA bylaws permitted either such a delegation or the act of filing the Section 120.57(1) F.S. petition. Although an amended petition months later cured the "authority to file" problem, no evidence ever established which, if any, association members owned property adjacent to the NPU facility. Respondent NPU has owned and operated its Seabridge wastewater treatment plant since 1989. At that time, the plant had been rated at .9 MGD because of the previous owner's decision to economize by using an extended aeration form of treatment rather than contact stabilization method for which the plant had been designed. If the previous owner had utilized the contact method, the facility would have been rated at .157 MGD. The capacity of the plant percolation ponds at the time NPU acquired the facility was .157 MGD. In 1991, NPU applied for and received a Department of Environmental Regulation (DER, predecessor agency to DEP) permit to expand the facility to a treatment capacity of .210 MGD. Legal and appropriate notice of the Department's Intent to Issue was provided to the public. It was never formally challenged pursuant to Section 120.57(1) F.S., and the DER permit became final. Mr. Visconti and SCA felt abused by the agency and by NPU because they, Visconti and SCA, had missed that window of opportunity to challenge the 1991 plant expansion permit. Thereafter, they proceeded to fight NPU on the expansion and every other issue in whatever forum was available, notably before the Volusia County Commission and the Florida Public Service Commission. Mr. Visconti, acting as head of the SCA Sewer Committee, wrote a March 10, 1993 letter to DEP that stated, in pertinent part, as follows: Seabridge Civic Association, Inc. (hereafter "SCA") wishes to apprise you that SCA hereby intends to petition the DER for an administrative hearing(s) upon your giving any Notice of Intent to Issue any further permits, particularly any future 0.210 MGD Operating Permit, for the "Seabridge Subdivision" Sewer Treatment Plant. The letter, confirmed by Mr. Visconti's and Mr. Tyde's oral testimony, shows that Mr. Visconti and SCA intended to oppose any permit NPU applied for, regardless of its purpose, and that they knew of the original .210 MGD permit at that time. It goes on to protest sewer connections and previously finalized old permits. Mr. Visconti also wrote a July 2, 1993 letter to DEP, limiting communication, which stated, in pertinent part, as follows: Effective after today, please be advised that the official single point communication link between DER and SCA is with SCA President Charles Dassance. NPU's consulting engineer submitted "as-built" plans of the expansion in early 1993 after the NPU plant expansion construction had been completed. The percolation pond had been expanded to a lesser degree than that authorized by the 1991 DER permit because NPU had had to accommodate Volusia County setback requirements which eliminated approximately 11,000 square feet of pond bottom. NPU's engineer timely made the Department aware of the discrepancy and discussions occurred with the Department as to how to resolve it. NPU's engineer commissioned a groundwater engineering company to prepare a report to justify effluent disposal capacity of the percolation pond at the rate of .210 MGD, which was done on April 12, 1993 by PSI/Jammal & Associates ("the April Jammal report.") Not satisfied that the model used by Jammal for the April report could be verified by computer means available to the Department, DEP required a corroborating mounding analysis which was submitted on July 23, 1993 ("the July Jammal report.") In the meantime, DEP limited the percolation pond loading rate to .151 MGD until the applicant could justify a higher loading rate. NPU's 1991 construction permit for .210 MGD had expired in July of 1993. Needing a vehicle by which the review of the applicant's request to rerate the pond could take place, DEP required submittal of a construction permit application, which NPU subsequently filed on August 11, 1993 at the Department's Orlando office. To demonstrate reasonable assurance for the rerating authorization, NPU submitted the July 23 mounding analysis and showed that the loading rate would not be greater than 5.6 gallons per day per square foot. Percolation is considered to be excellent at the Seabridge treatment plant site because of the soil types underlying it, and the 5.6 figure is within the parameters of DEP's current rules. On October 26, 1993, DEP issued its Notice of Intent to issue the rerating permit for .181 MGD, calculated by multiplying the pond bottom area by the loading rate of 5.6 gpd2, which constituted a reduction from the 1991 .210 MGD loading rate approval. The Notice was published on November 11, 1993, and both Petitioners received individual Notice of the Intent to Issue. On November 22, 1993, SCA filed its petition challenging the proposed rerate authorization. Petitioner Visconti timely filed his petition on November 26, 1993. To establish substantial interests, Petitioners generally alleged that the noise, odor, and unsightliness of the plant would be increased if the rerating were to be approved. They also alleged adverse effects to property values, disparities in the technical information NPU had provided in support of its rerating application, and improper procedures employed by DEP in that it had not coordinated with Volusia County. Petitioners' asserted that their "proper purpose" for filing their petitions was that they had seen a 1993 letter of the DEP Regional Director to the effect that the pond was only licensed for .151 MGD and they assumed a new permit application for .181 MGD would constitute a dangerous increase. This assertion is spurious because both Mr. Visconti and Mr. Tyde admitted they had not even seen the rerate application before filing their petitions and that they did not know what the rerate application said until well into the formal administrative hearing process. Assuming, arguendo that the prior letter and DEP's Notice of Intent on its face could have misled Petitioners into believing there would be an increase from .151 MGD to .181 MGD instead of a decrease from .210 MGD to .181 MGD, that, alone, does not demonstrate a proper purpose in light of all the contrary and clarifying information available to Petitioners upon reasonable inquiry and which they chose to ignore. Because of the allegations of technical disparity and improper procedure, Visconti's petition was sustained against NPU's motion to dismiss with one paragraph struck. The SCA petition was dismissed for lack of showing of substantial interest and the amended SCA petition was challenged by NPU on the same basis, with ruling reserved for the recommended order. (See, the April 8 and June 6, 1994 orders, discussed supra.) After acknowledging on June 15, 1994 that NPU could demonstrate reasonable assurances, Petitioners presented evidence with regard to whether they had conducted a "reasonable inquiry" prior to filing the November 1993 petitions, but presented no proof as to their allegations of substantial interest contained in their petitions. Based on the evidence, it is found that neither Petitioner had any substantial interest which gave them standing to proceed with their challenges. Prior to filing their petitions, neither Petitioner had looked at NPU's August 1993 permit application. Between the Notice of Intent to Issue and filing their petitions, neither Petitioner contacted either DEP or NPU, nor conducted any review of the DEP files for data in support of their contention that the rerate authorization had been improperly granted by DEP. Petitioner SCA relied entirely on research conducted by Mr. Visconti when he had been chairman of SCA's Sewer Committee prior to July 2, 1993. Mr. Visconti's last review of NPU's files at the Department had been in June 1993, two months before the rerate application was even filed. Mr. Visconti ostensibly filed his petition upon his own opinion that the pond capacity was being increased from .151 to .181 instead of decreased from .210 to .181. His testimony was evasive or obstructionist in replying to reasonable questions concerning his area of expertise for forming his opinion, except to say that as a management consultant for unspecified high technology companies on how to manage their programs for federal, state, and local governments, he could interpret rules as well as anybody. As to his interpretation of DEP rules, however, he testified that he did not know precisely what the DEP capacity rules were; he did not ask any questions of DEP after the notice of intent to grant was issued, and he relied on hearsay from other SCA members. He never contacted NPU or their engineers after the rerate application. He opposed NPU's entitlement to the rerate permit even if NPU met all DEP rules, and he intended that his petition would cause the plant to go back the way it was before the 1991 expansion. He knew that the F.A.C. standard had changed to permit 5.6 GPDs, but he still objected to granting the permit on the terms contained in the rule. Mr. Visconti further testified that he knew in 1991 that a permit for .210 capacity had been issued and that the 1991 assessment was that percolation was excellent at the site. Although he had not seen the new permit application before filing his petition, he testified that he would not have cared if the application had said it reduced from .210 to .181, because he would still believe it was an increase. He never checked to see if the Intent to Issue had reconciled his pre-application concerns. He told himself the rerate would possibly increase pollutants. He did not know if June 1993 letters he relied on concerning a permit expiring and a .151 capacity of the pond had anything to do with the new permit application; he did not ask anybody, but just decided that they did. He admitted he intended to contest any and every permit NPU ever applied for regardless of what the permit was for. Despite the fact that the percolation pond has no equipment in it, he felt it was just "logical" that noise would increase. He admitted that he has never even looked over the fence, and so his petition's complaint of unsightliness was based solely on the already completed plant expansion, not the 1993 rerate application for the percolation pond which his petition challenged. He never asked DEP or any lawyer if noise, odor and aesthetics constitute pollution concerns; he assumed DEP personnel were incompetent; he decided DEP was withholding information from him because DEP did not keep all old permits for one facility or site in a single file and because papers he had seen in Public Service Commission and Volusia County files were not always in DEP files. He did not verify if the allegation in his petition that NPU did not own the land had been resolved before he filed his petition. He did not know that it had been resolved. Mr. Visconti left town for the entire five months immediately after filing his petition, with no concern as to how this might affect litigation. Mr. Tyde, now president of SCA, also testified that he filed the SCA petition because he believed there was to be an expansion of the plant. He specifically testified that he relied on Mr. Visconti's old research, except that he massaged some figures of his own based on standards of the Department of Health and Rehabilitation so as to compare that agency's condominium connection requirements with single family dwelling connections. Apparently, SCA opposes the influx of condominiums to its area. However, this subject matter has no real nexus to the gallonage one NPU percolation pond can accommodate under DEP rules, and it only goes to the Petitioners' belief that any change, starting with the 1991 expansion permit, impacts on property values and plant capacity and is simply a bad thing. Mr. Tyde filed SCA's initial petition without knowing if the SCA by-laws permitted him to do so. He decided there was expansion solely on the basis of a DEP letter that had been written before the current application was made. He believed erroneously that the words "rerating" and "increase" are synonymous. He never contacted anybody at DEP to verify his analysis; he filed the petition within nine days of the Notice of Intent to Issue, concentrating not upon the validity of the allegations but upon format. He knew there were no potable wells that would be affected by the plant so that paragraph six of SCA's amended petition drafted to further explain the disparities which were alleged environmental dangers could not possibly be correct. The intent of the SCA petition was not to challenge the pond rerating but to revert the area to what it had been before NPU's completed 1991-1993 expansion, and it was filed with the knowledge that NPU had spent a lot of money to complete that construction and would have to spend more to litigate the pond rerate application. When Petitioners admitted on the day scheduled for formal hearing on the merits that NPU and DEP would be able to show reasonable assurance for granting the permit, they thereby admitted that their petitions' allegations of disparities in the technical information NPU had provided could not be substantiated. Evidence at the fees hearing showed their allegations about data disparities were irrelevant to the pond rerate permit because the "disparities" the Petitioners were concerned about related to the collection or treatment processes of the plant, the permit for which had long-ago become final, or they were irrelevant because they were related to potential enforcement actions if something went wrong at the plant or if NPU operations violated DEP rules. The so-called "disparities" did not concern the percolation pond's capability. No reason to file any violation/enforcement action against NPU existed at the time the petitions were filed. Because the NPU facility was never involved in a DEP enforcement proceeding and was in constant touch with DER per the procedures outlined in Findings of Fact 5, and 7-9 and 20 supra, it is found that the "as built" construction of the pond at less than the originally authorized maximum capacity did not provide evidence that DEP had not followed its own rules for processing NPU's 1993 permit application and for its Intent to Issue. With regard to the procedure (mounding calculations) employed by DEP in approving the rerate, it was shown that Mr. Visconti waited until February 1994 to discuss his 1993 materials with a college professor of geology, another professor, and a professional engineer. Only in February 1994, three months after filing the petitions, did Mr. Visconti present these "experts" with the 1993 data, and even then he asked them about hypothetical flows from values he made up. When they could not give him any definitive answers, he claimed that DEP had withheld information and moved to continue the administrative proceeding. In considering the evidence, the candor and demeanor of all the witnesses has been weighed and the issue of whether or not DEP impeded Petitioners' access to agency files at any time is resolved against Petitioners and in favor of the agency. In so doing, consideration has been given to the evidence that SAC allowed Mr. Visconti to "take the point" on all investigations instead of doing anything on its own. That Petitioners, as laymen, may have been confused by DEP's use of discreet files for each of the successive permits applied for by NPU and granted or denied by the agency has been considered. The undersigned also appreciates that Mr. Visconti never understood that after some permits were granted, only microfilm copies of certain preliminary items remained. However, even so, Mr. Visconti's own testimony is to the effect that he was so fixated on the idea of a "conspiracy" or "collusion" between DEP and NPU that he rejected all explanations by DEP personnel and persisted in the ideation that DEP's failure to copy him with copies of all correspondence between the applicant and the agency pointed to collusion. He assumed, without good legal cause, that if something he had previously seen or thought should be in the agency file was not, in fact, in the agency file, he therefore had a right to file a petition against any permit application. Likewise, he decided, also without good legal cause that if there were anything in the agency file that caused him "concern" or which was different than the current permit application papers but which applied to any prior permit, he had a right to challenge the current permit application. The single instance of lack of cooperation and courtesy by one DEP employee as related by Ms. McCarthy concerning one telephoned question is accepted, but that single incident is not enough to swing the balance and absolve Petitioners of making a reasonable investigation before they filed their petitions. There is no evidence that the single question related to this permit; it was asked before the application for this permit was made and before the Intent to Issue was published; and the question apparently was never repeated. None of this evidence established any proper purpose in Petitioners for alleging data disparities or procedural irregularities, however defined. NPU presented evidence it had employed its attorney and agreed to pay certain fees and that its attorney's fees and costs are reasonable with the exception of the billings between October 5 and October 29, 1993. The allowable amount totals $24,690.00 in attorney's fees and $2,434.83 in costs. Petitioner Visconti established no evidence with regard to his counter motion for attorney's fees upon any legal theory whatsoever. DEP established no independent motion, entitlement, or amount of fees and costs.

Florida Laws (2) 120.57, 120.68

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FLORIDA WILDLIFE FEDERATION vs. GORDON V. LEGGETT, MOSELEY COLLINS, ET AL., 82-002235 (1982)

Division of Administrative Hearings, Florida Number: 82-002235 Latest Update: Jun. 21, 1991

The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?

Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 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 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401

Florida Laws (2) 120.57, 120.60 Florida Administrative Code (1) 40E-4.301

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SHELLEY MEIER vs KELLY ENDRES, IFRAIN LIMA, AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 20-002994 (2020)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jul. 01, 2020 Number: 20-002994 Latest Update: Dec. 25, 2024

The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)

Florida Laws (7) 120.52, 120.569, 120.57, 120.68, 373.413, 373.4136, 373.414 Florida Administrative Code (2) 62-330.301, 62-330.302 DOAH Case (5) 11-6495, 12-2574, 20-2993, 20-2994, 20-2995

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LEE MADDAN vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 03-001499 (2003)

Division of Administrative Hearings, Florida Filed:Shalimar, Florida Apr. 28, 2003 Number: 03-001499 Latest Update: Nov. 24, 2003

The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Petitioner qualifies for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Petitioner's application No. 46-0199306-001-EE, seeking to place a modular home on a fill pad in Lake Blake, should be approved by DEP.

Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered upholding denial of Maddan's Permit Application No. 46-0199306- 001-EE. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2003. COPIES FURNISHED: Charles T. Collette, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James E. Moore, Esquire Post Office Box 746 Niceville, Florida 32588 Robert W. Stills, Jr., Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000

Florida Laws (7) 120.57, 373.4145, 373.4211, 403.031, 403.121, 403.812, 403.813

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RONALD E. DOWDY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 79-000219 (1979)

Division of Administrative Hearings, Florida Number: 79-000219 Latest Update: Sep. 04, 1979

Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the documentary evidence introduced, the proposed findings of facts and recommended orders filed by the parties' counsel, and the arguments and citations of authority cited therein, the following relevant facts are found. 1/ This action concerns a parcel of land owned by Ronald E. Dowdy and his wife, Mary Ellen Dowdy, located at 7630 Lake Marsha Drive, Orlando, Florida. The Department does not claim, other than regulatory authority, ownership to the land in question. On March 15, 1978, Petitioner submitted to the Department a dredging and fill permit application, file No. 48-8093-4E., to deposit 200 cubic yards of fill material waterward of the line of ordinary high water, adjacent to Petitioner's upland property on Lake Marsha. The area proposed to be filled measured 150 feet along the shoreline, 55 feet between the line of ordinary high water and ordinary low water, and 12 inches deep. (Petitioner's Exhibit 2; D.E.R. Exhibit 9.) On June 15, 1978, the Department gave notice of its intent to deny Petitioner's permit application, stating with particularity the specific ground on which the denial was based and allowing Petitioner fourteen (14) days in which to petition for a hearing on the denial. Within thirty (30) days of the filing of the petitioner's application, he was advised that clearance and/or approval was necessary from the Department of Natural Resources. A Final Order denying application for permit was issued June 23, 1978. Petitioner did not file a petition pursuant to Chapter 120, Florida Statutes, seeking review of either the intent to deny letter or the Final Order until January 15, 1979. The Department waived the time requirement for filing the petition. On or about August 3, 1978, Petitioner caused to be deposited large quantities of fill in excess of the 200 cubic yards applied for along approximately 380 feet of shoreline between the line of ordinary high water and ordinary low water adjacent to his upland property. (Petitioner's Exhibit 2 and D.E.R. Exhibits 1 and 2.) Although Petitioner did not obtain a permit from the Department prior to commencement of the fill work described above, Orange County issued a permit (see Petitioner's Exhibit 2) which specified that the Department permit would have to be obtained prior to commencement of the fill work. The county permitted the Petitioner to fill an area along 150 feet of shoreline while the petitioner filled the entire length of the shoreline, i.e., 380 feet. As of the hearing date, Petitioner had not filed an application for a permit from either the county or the Department for the excess fill. Prior to the time that the Petitioner undertook the filling project, he met with employees of the Department who advised that a permit would be necessary prior to commencing the fill work. Department employees suggested that the State would look favorably on a reduced fill project of somewhere between 50 to 75 feet along the lake shoreline. (D.E.R. Exhibit 8.) The bulk of the fill area as completed, lies below the ordinary high water line of Lake Marsha, i.e., below the elevation line of 127 feet. (Petitioner's Exhibit 2.) Mr. Robert Day, a pollution control specialist employed by the Department as an enforcement investigator, observed the filling activity as it was taking place from the movement of fill by bulldozer to the sodding of the newly created fill area. (D.E.R. Exhibits 1 and 2.) Upon discovery of the Petitioner's filling activity without a permit, the Department attempted to notify him of the violation by means of a warning notice sent by U.S. Mail, certified, return receipt requested, which Petitioner did not claim. The Department thereafter sent Petitioner a telegram which resulted in a meeting in the Department's office in Orlando. (D.E.R. Exhibits 3, 4 and 5.) Richard Hoffman, district conservationist with the U.S. Department of Agriculture, Soil Conservation Service, was qualified as an expert in the collection and identification of soil core samples. Mr. Hoffman testified at length on a series of core samples taken on the Dowdy property confirming the fact that the Petitioner had placed fill on vegetated muck and that all but one of the core samples were below the high water line. (Petitioner's Exhibit 2 and D.E.R. Exhibit 7.) James Morgan, an environmental specialist of the Department, was qualified as an expert witness in the processing and appraisal of dredge and fill permit applications and their impact on water quality and wetlands ecology. Mr. Morgan advised the Petitioner on February 14, 1978, several months before the actual filling activity, that it was necessary to obtain a permit from the Department pursuant to Chapter 17-4, Florida Administrative Cede. Again, on March 16, 1978, at a meeting with Petitioner, Mr. Morgan advised the Petitioner of the necessity to obtain a permit before any filling was done. Additionally, he advised and suggested to Petitioner that with respect to his proposed activity, the Department would look favorably upon a modified application requiring a fill area of 50 to 75 feet of the lake's shoreline. Upon receipt of Petitioner's application, Mr. Morgan conducted a permit application appraisal (D.E.R. Exhibit 9) and found that the area proposed to be filled contained deep muck deposits and was dominated by the vegetation, maidencane, with a lesser abundance of arrowhead, pickeral weed and pennywort. The dominant species was maidencane, which along with arrowhead and pickeral weed, are species found in the vegetative index for submerged lands as set forth in Section 17-4.02(17), Florida Administrative Code. (See D.E.R. Exhibits 9 and 10.) Approximately 50 percent of the shoreline of Lake Marsha has been developed with the consequent elimination of marsh and wetland vegetation fringes of the lake. The aquatic vegetation found on the Dowdy property prior to filling performed functions of assimilating nutrients and filling deleterious substances from the waters of Lake Marsha and provided wildlife habitat. This assimilation process enabled and assisted the shoreline plants ability to absorb water containing dissolved pollutant substances which are utilized for plant food. The aquatic vegetation also filters suspended solids from the lake water. This assimilation and filtration process helps preserve water quality in a fresh water lake by both filtering runoff from the upland and cleansing the water of substances found in the water body itself. (D.E.R. Exhibit 9.) This process is commonly referred to as the "kidney effect". The fill which has been placed in the submerged land aquatic community will, as testified by the Department's witnesses, totally eliminate portions of the kidney of Lake Marsha and has been replaced with sod which carries the potential for causing further pollution of the waters of Lake Marsha. Testimony reveals that the fill will increase the nutrient load in the lake and dramatically decrease its ability to cope with the increased load. It is predicted by the Department's witnesses that the impact of the fill on the water quality of the lake will be significant as a substantial portion of the lake's littoral zone has been substantially eliminated. This, according to witness Morgan, can lead to the eutrophication of Lake Marsha end a resultant lower equilibrium based on poor water quality. (D.E.R. Exhibit 11.) According to Morgan, the parameters which are expected to be violated by the fill and the resultant elimination of a submerged land aquatic plant community include phosphorous and nitrogen which are classified as nutrients under Section 17-3.061(2)(i), Florida Administrative Code, and turbidity, under Section 17-3.061(2)(g) Florida Administrative Code. (D.E.R. Exhibit 9, part 2.) Testimony reveals that a correlation exists between the degree of shoreline development of Central Florida lakes and the water quality of such lakes. This correlation is direct and reveals that the greater the degree of shoreline development, the greater the reduction of the lake's ability to compensate for nutrient load going into the lake and, thus, lower water quality. (Testimony of Morgan and Hulbert, T.R. pp 138-139; 177-180.) Witness Morgan testified that by restoration of the Petitioner's fill site to its original contours and elevation, the aquatic vegetation which once thrived on the site will reestablish itself and the consequent restoration of the lake's "kidney effect". James Hulbert, a Department District Biologist qualified as an expert in the area of water pollution biology and wetlands ecology, confirmed witness Morgan's testimony regarding the impact of water quality based on Petitioner's filling, the value of the wetland vegetational community which was, according to him, destroyed by the filling, including protection of uplands and its role as a source of food and shelter for the lake's aquatic life. Witness Hulbert also confirmed the testimony of witness Morgan to the effect that a direct correlation exists between the degree of shoreline development in central Florida lakes and the lowering of water quality in such lakes. Witness Hulbert testified further that submerged lands such as the ones filled by Petitioner assimilate nutrients for preserving fisheries of fresh water lakes. Mr. Hulbert also testified that dissolved oxygen levels are expected to be degraded with severe fluctuations which would result in the dissolved oxygen levels of as low as 0.0, below the standards of Chapter 17-3, Florida Administrative Code. This increased nutrient load will, according to Mr. Hulbert, result in proliferation of such existing exotic plant species such as hydrilla and water hyacinths, and an acceleration of the lake's eutrophication. Mr. Hulbert summarized the long- range impact of the fill as both measurable and substantial and concluded that the degradation process will be steady and gradual. Robert Bell, a real estate appraiser licensed in the State of Florida as a broker, indicates that there are other valuable uses of Petitioner's property other than filling the entire shoreline. Such uses, according to Bell, include the construction of a boardwalk, a deck, gazebo, a boat house, and even partial filling of the shoreline area for access to the water. The Department incurred expenses and costs in preparation of this proceeding for purposes of tracing, controlling, and abating the pollution sources created by the Petitioner's dredge and fill activities in the amount of $201.88. (D.E.R. Exhibits 14 and 15.)

Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby

Florida Laws (5) 120.57, 403.031, 403.121, 403.141, 403.161

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THOMAS A. DRISCOLL vs SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, ENGLE HOMES AND LAKE BERNADETTE, INC., 01-002471 (2001)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Jun. 25, 2001 Number: 01-002471 Latest Update: Dec. 03, 2001

The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.

Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.

Florida Laws (2) 120.569, 373.042

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CAHILL PINES AND PALMS PROPERTY OWNERS ASSOCIATION, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 95-004377 (1995)

Division of Administrative Hearings, Florida Filed:Key West, Florida Aug. 31, 1995 Number: 95-004377 Latest Update: Jan. 29, 1997

Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000

Florida Laws (1) 120.57

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BERNARD M. CAMPBELL AND BESSIE H. CAMPBELL vs SOUTHERN HY POWER CORPORATION AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 99-000307 (1999)

Division of Administrative Hearings, Florida Filed:Inglis, Florida Jan. 22, 1999 Number: 99-000307 Latest Update: May 17, 2000

The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449

Florida Laws (6) 120.57, 20.255, 267.061, 373.026, 373.414, 471.025 Florida Administrative Code (6) 40D -4.301, 40D-4.091, 40D-4.301, 61G15-27.001, 62-4.080, 62-4.242

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