Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1981.
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
Findings Of Fact The Petitioner is a political subdivision of the State of Florida. Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. Respondent, MRT, is a real estate investment trust organized under the laws of the State of Maryland and authorized to do business in Florida. Royal Oaks Development Corporation is a Florida corporation, a wholly-owned subsidiary of Maryland Realty Trust. MRT is developing a parcel of land in Sections 33 and 34, T-2-N, R-1-E, Leon County, Florida, and Section 4, T-1-N, R-1-E, Leon County, Florida, of which approximately 60 acres has already been developed as Royal Oaks Unit No. 1, a recorded subdivision pursuant to Chapter 177, Florida Statutes. The balance of the 120 acres is yet to be developed, and is the subject of this proceeding. The specific activity for which the application for dredge and fill permit was submitted consists of improvements to a drainage-way running from the south boundary of the MRT property to a pond designated in the application as "Pond II", together with a drawndown structure, referred to as "S-15". Following submittal of the permit application, DER notified MRT of the receipt of the application and advised that both a permit under Chapter 403, Florida Statutes and a license for stormwater discharge under Rule 17-4.248, Florida Administrative Code, would be required. Following review by the Department, during which MRT was notified that the application in its original form would not be received favorably, MRT, on August 21, 1980, revised its application and based on such revisions, the Department, on October 10, 1980, notified MRT of its intent to issue the permit and license sought. As indicated in the Intent to Issue, DER has asserted jurisdiction over the dredge and fill activities in question contending that they are contemplated to either be in or connected to "waters of the State". Specifically, the Department's Intent to Issue states as follows: The Department has permitting jurisdiction under Chapter 403, Florida Statutes, Section 17-4.28, Florida Administrative Code, and Public Law 92-500 over dredge and fill activities conducted in or connected to certain waters of the State. The specific pond in question and the pond to which it is connected constitute waters of the State over which the Department has dredge and fill permitting jurisdiction as defined in Section 17-4.28, Florida Administrative Code. The project is not exempt from permitting procedures. Pond II is approximately four acres in size and consists of a western lobe of approximately one acre. Pond II is connected to the north to a waterbody known as Pond III/Foxcroft Lake". The vegetation in the south portion of Pond III is typical of fresh water vegetation that grows in submerged or wet areas. The vegetation in an existing well-defined channel between Pond II and the proposed location of structure S-15 is also comprised of water-tolerant species. Sagittaria subulata was observed in the channel in the area proposed for location of S-15. This plant species cannot tolerate dry conditions, indicating that water is present in the channel under most conditions. Further, no upland or pioneer species were observed in the channel, which also is indicative of the fact that the channel usually contains water. Water flows from Pond II to Pond III approximately 90 percent of the time. The base flow in the channel is approximately 2 cubic feet per second. Based on the storage capacity of Pond II, it is probable that flow occurs out of Pond II into Pond III under most conditions. Although 88.0 feet mean seal level is the design normal pond elevation expected after construction of S-15, the present observable elevation of Pond II appears to be between 89.94 and 90.09 mean sea level. Observations of the types of vegetation surrounding Pond II supports the conclusion that the existing normal level of Pond II is approximately 90.0 mean sea level. Pond III is a waterbody of approximately four acres in size and is a portion of the continuation of a larger 10 acre body of water referred to in this proceeding as "Foxcroft Lake". Pond III was the subject of a prior Department dredge and fill permit in which it was determined that Pond III constituted waters of the State subject to the dredge and fill jurisdiction of the Department. Pond III/Foxcroft Lake is a lake owned by more than one person, of approximately 14 acres of surface area and a maximum average depth of approximately 3 feet. Pond III/Foxcroft Lake discharges to and is connected directly to a waterbody known as Long Pond. Long Pond in turn is eventually connected to and discharges into Lake Lafayette. Without any mechanisms designed to treat the pollutants expected to be generated by the proposed project, the development by MRT of its 120 acres of property could reasonably be expected to have a significant adverse impact on the waters of Pond II, Pond III and Foxcroft Lake. Scientific studies demonstrate that potential pollutants generated from developments - single family, multi-family and commercial - have a significant impact on receiving waters if not treated before discharged. The project as presently designed will correct an existing source of pollution by removing sediment which is entering Pond II from the south from Shannon Forest Subdivision. This sediment has been deposited in the drainage- way between Shannon Forest and Pond II and is damaging and severely stressing biota in the drainage-way. This sediment has filled a portion of Pond II and could be expected to eventually discharge into Pond III/Foxcroft Lake. The pre-development rate of flow off the project site as it presently exists is approximately 600 cubic ft. per second. The project as proposed will reduce the rate of flow by 50 percent, to approximately 300 cfs. The project incorporates five mechanisms or abatement controls to treat contaminants customarily contained in stormwater: a grassed conveyance system; retention of natural vegetated areas; energy dissipators; sediment traps; and added storage. Grassed conveyance systems treat stormwater by the assimulation by plant communities of dissolved pollutants, such as nutrients, and the deposition of suspended pollutants that have absorbed to the sediment particles. Approximately 50 percent of the conveyance system in the Phase II development will be grassed swales and re-vegetated ditches. As many swales as possible will be used to convey the stormwater from the discharge at the street outfalls to the ponds. The main drainage ditch through the property will also be grassed. Natural vegetated areas to be left around the existing ponds will treat stormwater by assimilation and filtration in the same manner as the grassed swales and ditches. A one-acre parcel of wetlands is to be left between the southern most portion of the drainage-way and Pond II as described in MRT Exhibit No. 8 and in the revised permit application of August 21, 1980. The vegetation downstream of Pond II between the pond and control structure S-15 will also be left intact. Virtually all the vegetation bordering Pond II and Pond III will be left in place. Five energy dissipaters are to be constructed upstream of Pond II. These structures are designed to reduce the existing sedimentation and erosion problems by reducing the energy gradient and allowing the deposition of sediment, upon which absorbed pollutants have attached, into the accompanying sediment traps. Sediment traps are also to be constructed upstream of Pond II. Sediment traps treat stormwater by reducing the velocity gradient. Sediment and the pollutants absorbed to the sediment will drop out due to insufficient velocity. Storage will be increased in Pond II by the construction of control structure S-15 and by the planned excavation of Pond II. Added storage has a beneficial effect on water quality in that it allows additional sediment particles to settle out, allows additional time for the vegetation on the edge of the ponds to assimilate dissolved pollutants such as nutrients, and reduces the peak discharge velocity. The project is in the public interest in that it will alleviate an existing stormwater problem. In terms of probable efficiency, physical needs and costs, the project represents the best available treatment alternative. Based on existing technology, the system designed for this project is the most effective system within reasonable costs. The effectiveness of the stormwater treatment system depends on the presence of vegetation and will require less maintenance and attendant costs. There does not presently appear to be any local government effort to implement stormwater controls to address this problem or source. Petitioner submitted no evidence of such local government efforts. The system proposed by MRT will mitigate not only the effects of the discharge generated by the proposed development of the 120 acres of property owned by MRT, but will also mitigate the effects of an existing source of stormwater pollution. The system, as designed, is sufficient to afford the Department reasonable assurance that stormwater quality standards will not be violated. The parties stipulated that, should the requested permit and license be issued, they should incorporate the following additional condition: Roads and drainage facilities are to be owned and maintained by Leon County. All paving and drainage shall be done in accordance with the County's standards, details and specifications. In addition, MRT has instituted civil litigation against Leon County concerning the property involved in this proceeding. One of the allegations of MRT's complaint is that Leon County has, through the action amounting to inverse condemnation, acquired a drainage easement over the property for which MRT is now seeking the dredge and fill and stormwater permits. The plans submitted to DER by MRT with its application contain the following: When the construction plans for Phase III of the Royal Oaks development are prepared, these plans shall be submitted to the Department for evaluation for compliance with the original stormwater review.
The Issue Whether the proposed Walden Chase development (the "Project"), is consistent with the standards and criteria for issuance of an Environmental Resource Permit ("ERP") as set forth in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The Project will allow construction and operation of a proposed surface water management system ("System") designed to serve a 258-acre residential community and an adjacent 21-acre commercial out parcel (the "Project"). The Project is part of a larger proposed development, the "County Road 210 PUD," that contains additional areas that are not owned by Walden Chase and are not part of the Project. The Project is located east of U.S. 1, a federal highway with average daily traffic of 16,500 cars per day; along the western boundary is light residential development. The northern boundary of the property is County Road 210, with daily traffic of about 8,500 cars per day. To the south is Nease High School, and to the east is Quail Ridge Farm subdivision ("Quail Ridge"), a major development, and Christ Episcopal Church. The Project property is bifurcated by a major overhead power line, including an associated fill road which runs through the middle of the property. The Project consists of approximately 565 homes, a recreation area (including ball fields) located in the center of the Project, and the System. The Project is being developed by Walden Chase Developers, Ltd., a limited partnership formed in 1999 for the purpose of developing the Project. The budget for the Project is $16,000,000, which is being financed through investors, equity, and an acquisition and development loan. Raymond O’Steen, president of Walden Chase’s Managing Partner, Florida First Coast Development Corporation, testified that he is responsible for ensuring that the Project is constructed in compliance with the Permit conditions. To ensure such compliance, he will supervise construction, hire professional engineers to make monthly inspections, and cooperate with agency staff inspecting the Project. During construction, all construction equipment will be maintained to ensure that no oils and greases will be discharged into wetlands. The long-term maintenance entity will be the Walden Chase Homeowners Association, Inc. (the "HOA"). The HOA has authority to: (i) operate and perform routine custodial maintenance of the surface water management system; (ii) establish rules and regulations; (iii) assess the cost of operation and maintenance, and enforce the collection of such assessment; and (iv) exist in perpetuity. If the HOA is dissolved, then operating responsibility will be transferred to a suitable entity acceptable to the District. Walden Chase has entered into an agreement with the owner of the 21-acre commercial out parcel (which is to be served by the System), whereby the owner of that outparcel will pay a pro-rata share of the operation and maintenance costs. Cross-easements have been recorded to that effect. The outfall from the storm water management system is through a ditch to the east of the Project. Walden Chase has legal authority to use that ditch. The ditch will be maintained by HOA. No septic tanks are planned for the Project. The Surface Water Management System The System is primarily a wet detention type of storm water treatment system, composed of a series of interconnected lakes that discharge at the southeastern portion of the property. Wet detention systems contain ponds with permanent pools of water with structures limiting discharge from the System so that pollutants from the storm water gradually settle out. The System was designed to capture 2.5 inches of runoff from the impervious area. The receiving bodies of water for the System are Twelve Mile Swamp and Durbin Creek, which are classified as Class III waters, pursuant to Rule 61-400, Florida Administrative Code. Neither Durbin Creek nor Twelve Mile Swamp are classified as Outstanding Florida Waters, pursuant to Rule 62-4.242(2), Florida Administrative Code. The System does not discharge to a land-locked lake. The System is designed to accommodate a 25-year/24-hour storm. The System is designed to provide replacement storage within 14 days following a storm event. The System is not located within a 10-year flood plain, nor within a flood way. The System has been designed so that it will not cause a reduction in the 10-year flood plain, nor will it cause a net reduction in flood conveyance capabilities within a flood way. To ensure that the System will not cause sediment transport, the outfall ditch is lined with concrete, and a sediment pond will be constructed at the end of the ditch to collect any type of sand or silt. Additionally, the banks of the System will be stabilized and will be seeded and mulched to prevent erosion. A detailed erosion and sediment control plan has been incorporated in the design, including the use of silt fencing and hay bales during construction. The parties stipulated that: excluding backyard swales and the diversion of storm water from Quail Ridge subdivision . . . the system is designed in accordance with Rule 40C-42.026(4), Fla. Admin. Code, the design criteria for wet detention systems. In addition to the wet detention component of the System, water quality treatment is provided by draining storm water run-off from the backyards, across vegetative natural buffers, and then into wetlands. The width of vegetative natural buffers needed to provide the required water quality treatment was calculated using the District's required methodology. Based on these calculations, vegetative natural buffers of a minimum of 15 feet and an average of 25 feet are provided around all wetlands which will remain on site. On two wetlands, larger buffers of 25.65 feet will be provided to ensure adequate water quality treatment. These buffers are consistent with the calculated requirements for vegetative natural buffers. Diversion of Surface Waters The run-off from approximately 47 acres currently discharges onto the Walden Chase property from Quail Ridge, the subdivision located to the east of the Project. Currently, the water discharges from the Quail Ridge storm water treatment pond into a ditch located in the power line easement which bifurcates the Walden Chase property. Under current conditions, the Quail Ridge pond does not discharge into the wetland systems on-site. After development, the Quail Ridge discharge will be diverted into a large wetland system on-site which extends over and onto Petitioner’s property ("Wetland 8"). This diversion will replace surface water from 42 acres that currently discharge into Wetland 8, but after development, will be re-routed through the Project's System. The run-off volume directed to Wetland 8 will be approximately the same after development as pre-development conditions. The surface water hydrology of the wetland system will also be maintained. The diversion of the Quail Ridge discharge does not require modification of the Quail Ridge storm water system, but rather, only modification of the drainage patterns on the Project site. The diversion will provide flood control benefits to Quail Ridge because the outfall from the Quail Ridge storm water treatment pond will be improved. Even if the diversion were not to take place, there will be no adverse impacts to the hydrology of Wetland 8 because that wetland is primarily hydrated through groundwater sources. If the diversion were not to take place, Walden Chase would monitor Wetland 8 to ensure that the hydrology was not adversely affected, and institute appropriate remedial measures if necessary to protect its functions and values. The System will also divert some surface waters that currently drain into other wetlands located on the Project site. The diversion will redirect the flow of water into treatment ponds to meet the ERP Criteria for water quality treatment. The run-off from portions of the houses and the back yards will continue to drain into the wetlands. The impacts from any diversion should be minimal because the wetlands are primarily hydrated through rainfall and the presence of groundwater under the wetlands. To ensure that the diversion will not significantly adversely affect the wetlands, Walden Chase will monitor the wetlands on-site; if there is significant adverse effect experienced, then Walden Chase will undertake appropriate remedial action. Diversion of Groundwater The wetlands which will remain after development are primarily hydrated by on-site groundwater, which is part of the area-wide surficial aquifer groundwater system. The soil types on the property indicate that it is not an aquifer recharge area, so no adverse impacts to aquifer recharge are anticipated. Additionally, due to the characteristics of the proposed residential development, water will be able to percolate into the soil, and thence into the groundwater. For these reasons, there will not be a significant adverse impact to the groundwater source for the wetlands. Walden Chase is undertaking additional measures to ensure the System will not adversely draw down groundwater. Two of the storm water facilities near wetlands were lined with clay materials to ensure they would not lower the groundwater elevations below the wetlands. Groundwater will not be lowered more than an average of three feet across the site nor more than five feet at any one location. Of particular concern to Petitioner were possible effects to the hydrology of Wetland 8, a large wetland system that extends onto her property. However, the source of seepage to Wetland 8 is primarily a groundwater source, not surface water. Rainwater percolates through the ground and then travels laterally through the soil to the seepage slope. The Project will not significantly reduce the groundwater source because the percolation area is to be maintained. Water Quantity In permitting wet detention-type systems, the maximum flow of water discharged (the "peak rate of discharge") from the system is analyzed to ensure that the natural drainage conveying water off-site is not overtaxed. Under pre-development conditions, the peak rate of discharge from the Project site is 52 cubic feet per second. After development, the peak rate of discharge will be 49 cubic feet per second. The post-development peak rate of discharge will not exceed the pre-development peak rate of discharge. The Project roads have been designed to be flood-free, pursuant to the requirements of the applicable St. Johns County regulations. The first floor elevations of buildings will be located above the 100-year flood elevation, as is required by St. Johns County. The Project is not located on a water course. The upstream drainage area for the Project is significantly less than five square miles. Water Quality Before discharge, storm water from the Project is treated by the wet detention system and the vegetative natural buffers. The wet detention system slows water to allow time for pollutants to settle out. Also, treatment processes are provided through "nutrient uptake" by resident algae that live in the ponds, and by adsorption and oxidation of pollutants on the pond slopes and bottom. The proposed vegetative natural buffers treat the run-off from the back yards prior to discharge into wetlands. The District has determined that the storm water treatment system for Quail Ridge is not currently in compliance with the District's design criteria, but no evidence was presented that the quality of discharge from Quail Ridge is out of compliance with water quality standards. To ensure that the water diverted from Quail Ridge into Wetland 8 complies with state water quality standards, Walden Chase will undertake a three-step analysis. First, if the Quail Ridge storm water system is brought into compliance with its design, then the water quality being discharged from the system will presumptively meet water quality standards and the diversion can take place. Second, if the Quail Ridge system is not brought into compliance with the design criteria, then Walden Chase will sample the water quality of water discharging from Quail Ridge: if that water meets water quality standards, then the diversion can take place. Third, if the Quail Ridge system is not in compliance and the water quality discharging from that system does not meet water quality standards, then the diversion will not take place. In that instance, the currently existing discharge will be maintained until water quality standards are met, and Wetland 8 will be monitored to ensure that the surface water diversions caused by the Project will not adversely affect that wetland. Environmental Considerations The Project site includes pine flatwoods, scrubby flatwoods, sandhills, pine plantations, cypress swamp, wet pine flatwoods, two borrow pits, and several drainage ditches. The wetlands on site total 34.57 acres. There are also 1.27 acres of upland-cut drainage ditches, a 3.9 acre borrow pit, and a 0.18-acre borrow pit adjacent to Wetland 5. The following wetlands and drainage ditches will be preserved or otherwise not be disturbed by the Project: 1, 3, 4, 8, 9, 13, 15, 16, and 17. A total of 29.29 acres of wetlands will be preserved through imposition of a conservation easement, and 1.94 acres of wetlands will remain undisturbed. None of the wetlands on site are high quality. The following wetlands and other surface waters are of low or marginal quality or do not otherwise require mitigation of impacts: 10, 14, 18, 20, and 21. With the exception of three areas (the 3.9-acre borrow pit, the 0.18-acre borrow pit adjacent to Wetland 5, and a small borrow pit within Wetland 8), the wetlands on site are all "ephemeral," meaning that they dry-up periodically during the year. Wetland Impacts Certain of the wetlands are considered "isolated," which means that they are completely surrounded by uplands. In considering impacts to isolated wetlands, the District rules distinguish between isolated wetlands of less than 0.5 acres and those 0.5 acres or larger. Isolated wetlands of less than 0.5 acres are: Wetlands 2 (0.02 acres); 5 (0.37 acres); 10 (0.01 acres); 11 (0.3 acres); 12 (0.14 acres); and 14 (0.04 acres). All of these isolated wetlands are proposed to be impacted by the Project (D Ex 10). Isolated wetlands of 0.5 acres or larger are: Wetlands 1 (1.52 acres); 3 (1.06 acres); 4 (7.51 acres); 6 (0.5 acres); 9 (5.52 acres); and 15 (1.12 acres). Of those wetlands, only isolated Wetland 6 (0.5 acres) is proposed to be impacted. The other wetlands on-site are considered contiguous. These are: Wetlands 7 (1.04 acres); 8A (1.81 acres); 8 (13.7 acres on site); and 13 (0.01 acres). Of these, Wetlands 7 and 8A will be impacted for a total of 2.85 acres. The following are not truly wetlands, but rather are upland cut drainage ditches: 16 (0.02 acres); 17 (0.12 acres); 18 (0.07 acres); 19 (0.25 acres); 20 (0.06 acres); and 21 (0.06 acres). Of these, the following will be impacted by the Project: 16, 18, 19, 20, and 21. Alterations in upland cut drainage ditches are not required to comply with the criteria related to fish, wildlife, or listed species and their habitats unless they provide significant habitat for threatened or endangered species. Wetlands Functions All of the wetlands and uplands have been impacted in part by land management activities on the site and adjacent sites. For example, the site has been extensively logged, borrow pits have been constructed, and the Quail Ridge subdivision severed Wetlands 5, 6, 7, and 8A from a formerly large wetland area that extended into the Quail Ridge site. The power line and its associated road and the construction of the Quail Ridge subdivision altered the hydrology of Wetlands 5, 6, 7, and 8A. All of these alterations were completed prior to existing District rules requiring a permit prior to construction of a surface water management permit became effective on December 7, 1983. For the isolated wetlands less than 0.5 acres in size which will be impacted (Wetlands 2, 5, 10, 11, 12, and 14), the following unrebutted testimony was provided: (i) the wetlands are not used by threatened or endangered species for more than an incidental use; (ii) the wetlands are not located in an area of critical state concern; and (iii) the wetlands are not connected by standing or flowing surface waters at seasonal high water levels to one or more wetlands. These isolated wetlands less than 0.5 acres in size are of minimal value to fish and wildlife, when considered individually and cumulatively. The impact to these isolated wetlands are considered de minimus, based upon the disturbed condition of these wetlands and their use by limited members of animal species. Petitioner’s expert MacDonald opined that Wetlands 2, 5, 11, and 12 were of more than minimal value, although she admitted Wetlands 2 and 11 were not as important as other wetlands on the site. However, the mitigation plan compensates for whatever functional value these wetlands may provide. The major wetland impacts are to Wetlands 6, 7, and 8A. Wetland 6 is a lower quality wetland which provides some forage habitat for wading birds and mammals that may stray through, and some breeding habitat for amphibians. Wetland 6 may provide some minimal value or less-than-minimal value to wood storks that may incidentally use the wetland, and no value for the Florida Black Bear. Wetland 7 is a lower quality wetland due to the adjacent ditch, roadway, trail road, and power line easement. Wetland 7 may provide breeding habitat for some frogs, but not for gopher frogs. It may provide for foraging, cover, breeding, nesting and perching for other animal species. Wetland 8A may provide breeding habitat for gopher frogs and foraging, cover, breeding, nesting, and perching areas for other animals. It is not a habitat typically suited for forage habitat for wood storks. Upland cut drainage ditches to be impacted are 16, 18, 19, 20, and 21. These are considered to be low quality. The 3.9-acre borrow pit and the 0.18-acre borrow pit provide minimal functional value. Gopher frogs (a Species of Special Concern) may breed in the 0.18-acre borrow pit. The larger borrow pit supports a fish population but does not have sufficient shallow water areas for forage or draw down ability to concentrate fish. The smaller borrow pit does not have a fish population and does not appear to have suitable forage areas. Petitioner testified that on one occasion she saw wood storks (an endangered species) on the Walden Chase property in the power line easement near Wetlands 7 and 8A. She also saw Little Blue Herons (a Species of Special Concern) use the 3.9 acre borrow pit more than once. She also saw a Sherman's Fox Squirrel (a Species of Special Concern), Snowy Egret (a Species of Special Concern), and Bald Eagle (a Threatened Species), but she did not specify where or when she saw those animals or how frequently. Petitioner's daughter saw a Florida Black Bear (a Threatened Species) one time near the power line on the Walden Chase property about four years ago. However, there was no evidence that these animals use the wetlands for nesting or denning or that the wetlands on the Walden Chase property provide critical habitat for these animals. Petitioner's expert MacDonald testified that the site is not used for nesting or denning of these and other species. Any use of the wetlands on-site by threatened or endangered species would be incidental because the habitat on-site is not the type typically used by such species. Any impacts to these species would be offset by the mitigation plan. All parties agreed that gopher frogs may be present on-site and may use some of the wetlands on-site for breeding habitat. However, impacts to gopher frogs will be mitigated through Walden Chase’s plan to relocate all gopher frogs to an approved site. The relocation plan has been approved by the Florida Fish and Wildlife Conservation Commission. Any gopher frogs which escape this relocation effort will still be able to use the wetlands remaining on the site for breeding purposes. Wetland Mitigation To mitigate for anticipated impacts to wetland functions, Walden Chase will create 3.8 acres of new wetlands, preserve 29.39 acres of wetlands, and preserve 5.64 acres of uplands. Wetlands will be created adjacent to Wetlands 8 and 4. The creation areas are currently typical pine plantation, an abundant land form in the area. The wetland and upland preservation areas will be encumbered by a conservation easement subject to the provisions of Section 704.06, Florida Statutes. The mitigation ratios offered are consistent with the District’s past practice and within the District’s rule guidelines. The mitigation is to be conducted on-site. The mitigation is viable and sustainable. Allegations that the mitigation offered is "poor" because it does not preserve adjacent uplands is in error because the preserved wetlands remaining are surrounded by upland buffers, except for a road-crossing in Wetland 8A. The road-crossing is considered a secondary impact, off-set by additional mitigation. The proposed mitigation will off-set the adverse impacts to wetland functions caused by the Project. The functional values lost by the Project will be replaced. The conservation easement will preserve portions of the property, keeping those portions in their existing condition in perpetuity. Permit conditions have been imposed to ensure success of the creation areas. A monitoring and maintenance program will be undertaken to assure success. Mitigation Costs The mitigation, including monitoring and maintenance, is expected to cost between $81,287 and $112,800. Walden Chase will ensure that the funds to complete the mitigation are available by funding an escrow account for that purpose. The escrow account will be established at 110 percent of the contracted amount for such work. Reduction and Elimination Walden Chase considered alternative designs which would reduce or eliminate the impacts to Wetlands 6, 7, and 8A. Wetland 6, as a 0.5 acre isolated wetland, will be impacted for the construction of Lake 5 (part of the storm water management system). Reconfiguration of Lake 5 to avoid impact to Wetland 6 would result in a loss of seven residential lots (at a cost of approximately $280,000) and increased construction costs (of $46,800), for a total increase of $326,000. The alternative is not practicable because the benefits to be achieved by preservation of Wetland 6 do not warrant the cost of avoidance. Wetland 7 is being impacted to construct ballfields which are part of the recreation park located in the center of the Project. Moving the ballfields to an alternative location would result in a loss of approximately 15 residential lots (at a cost of $525,000) and would require construction of additional supporting facilities (at a cost of $150,00), for a total cost of $675,000. Wetland 7 is a medium quality wetland that has been previously drained, and is not a pristine wetland. The alternative is not practicable because the environmental benefits would be very small compared to the costs of relocating the facilities. Wetland 8A is being impacted by construction of a road-crossing and a storm water pond (Pond 3). The road-crossing is required to connect the various areas in the Project and the various land uses in the CR 210 PUD. The road-crossing is unavoidable, and crosses the wetland at the narrowest location. There is no practical alternative to relocating Pond 3 because that relocation would require use of pipes that would be too large to install in the ground. Two other alternatives were considered: (i) relocating the pond and discharge through Wetland 8 (at a cost of $1,600,000); and (ii) moving the pond immediately south of Pond 3 and losing 13 lots (at a cost of $450,000). Wetland 8A is a medium quality wetland. The alternative is not practicable because the environmental benefits to be achieved compared to the cost were not reasonable. The District provided unrebutted testimony that a reduction and elimination analysis would not be required for the isolated wetlands less than 0.5 acre in size. Further reduction of Wetland impacts will be achieved by lining storm water Ponds 3 and 4, which are adjacent to wetlands. Wildlife Utilization The potential exists for secondary impacts to wildlife utilization in wetlands crossings located adjacent to Wetland 1 and into Wetland 8A. However, except for those areas, upland buffers of a minimum width of 15 feet and an average width of 25 feet are provided abutting the Wetlands that will remain on-site. The wetland mitigation plan offsets any wetland functions and values lost through those impacts. With regard to whether the Project will adversely impact adjacent uplands which are used by aquatic and wetland-dependent animal species that are listed in Table 12.2.7- 1 of the Applicant’s Handbook, the uplands are not used for nesting or denning by any of the species listed. Historical and Archaeological Resources There will be no adverse impact to significant historical or archaeological resources. There are no such resources on the site. Additionally, the Permit conditions require that if any such resources are discovered during construction that work be halted, and the District be notified. Future Phases Potential secondary impacts of the Project are wetland impacts which could potentially result from future phases of the Project. Walden Chase and the District presented an unrebutted analysis of a future phase of the CR 210 PUD that could potentially impact a portion of Wetland 8, which is located off the Walden Chase property. The potential wetland impact would be a 0.6-acre road-crossing required by the local government in order to connect portions of the CR 210 PUD. Conceptually, the 0.6-acre impact could be mitigated by preservation of wetlands and uplands on the tract of land served by the road-crossing. However, the additional phase could be constructed in a way consistent with the District rules that would not result in secondary impacts to wetlands or water quality. ERP Criteria In order for an applicant to obtain an ERP from the District, an applicant must provide reasonable assurances that construction and operation of the proposed surface water management system comply with the criteria enunciated in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code. The Applicant’s Handbook adopted in Rule 40C-4.091, Florida Administrative Code, provides clarification of these rules. Section 10.2.1 of the Applicant’s Handbook establishes a presumption that construction and operation of a surface water management system will meet certain rule criteria if certain conditions are met. These conditions are met because: (i) the post-development peak rate of discharge (49 cubic feet per second) does not exceed the pre-development rate of discharge (52 cubic feet per second); (ii) no calculations are required regarding volume of discharge because the system does not discharge to a land-locked lake, nor are any special basin criteria adopted for the area; and (iii) flows of adjacent streams, impoundments or other water courses will not be decreased so as to cause adverse impacts. Having satisfied these four conditions, the following rule criteria are presumably met: Construction and operation of the System will not cause adverse water quantity impacts to receiving waters and adjacent lands. § 40C-4.301(1)(a), Florida Administrative Code; Construction and operation of the System will not cause adverse flooding to on-site or off-site property. § 40C-4.301(1)(b), Florida Administrative Code; and Construction and operation of the System will not cause adverse impacts to existing surface water storage and conveyance capabilities. § 40C-4.301(1)(c), Florida Administrative Code. Rule 40C-4.301(1)(d), Florida Administrative Code, requires that construction and operation of the System will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. A four-part test for satisfying any secondary impacts for the System affecting this criterion is described in Section 12.2.1 of the Applicant’s Handbook. A potential adverse secondary impact exists for the disturbance of the wetlands by use of adjacent uplands (e.g., horses, dogs, cats, etc.). However, pursuant to Section 12.2.7 of the Applicant’s Handbook, these impacts are not considered adverse if upland buffers of a minimum of 15 feet, an average of 25 feet, are provided. No aquatic and wetland-dependent species use the uplands on the site for nesting and denning and therefore it is presumed that no adverse secondary impact to those species will occur. There will be no adverse impact to significant archeological and historical resources and therefore it is presumed that no adverse secondary impact to those species will occur. The future phase of the CR 210 PUD is not part of the Project nor is it being developed by Walden Chase. However, for purposes of permitting, wetland impacts on that phase could be considered potential secondary impacts of the Project. Walden Chase and the District presented unrebutted testimony that the future phase of the CR 210 PUD could be constructed so as not to adversely impact wetlands or water quality, and therefore it is presumed that no adverse secondary impacts will occur as a result of that phase. The potential secondary impact for the road-crossing in Wetland 8A would not result in adverse impacts to wetlands or water quality. The potential secondary impact for the road-crossing in Wetland 8A was considered as part of the other impacts to that wetland, and as part of the wetlands impact onsite are offset by the mitigation plan. Additionally, the values and functions of the wetland impacts are off-set by the mitigation plan. Consequently, the criterion contained in Rule 40C-4.301(1)(d) has been satisfied. Rule 40C-4.301(1)(e), Florida Administrative Code, requires that construction and operation of the System will not adversely affect the quality of receiving waters so as to violate state water quality standards. This criterion is presumed met if the System is designed and constructed in accordance with Chapter 40C-42, Florida Administrative Code; and Section 10.7.2, Applicant’s Handbook. The parties have stipulated that this condition has been met for all portions of the System except: (i) the diversion from Quail Ridge into Wetland 8; and (ii) the discharge of storm water from back yards through vegetative natural buffers. With regard to the diversion from Quail Ridge, Walden Chase has agreed to refrain from diverting that discharge until water quality standards are met, assuring that the diversion will not violate these standards. With regard to the vegetative natural buffers, those buffers have been calculated to be large enough to provide the required level of storm water treatment. Consequently, the criterion contained in Rule 40C-4.301(1)(e) has been satisfied. Rule 40C-4.301(1)(f), Florida Administrative Code, requires that construction and operation of the System will not cause adverse secondary impacts to the water resources. Water quality discharging from the System will presumptively meet water quality standards because the System is designed in accordance with the provisions of Chapter 40C-42, Florida Administrative Code. No diversion of water from Quail Ridge to Wetland 8 will be allowed if water quality standards are not met. The vegetative natural buffers provide water quality treatment for water discharging into the wetlands. Therefore, there will be no adverse secondary impacts to the water quality of the water resource. Additionally, Walden Chase has provided reasonable assurance that there will be no adverse impact to groundwater resources by lining those storm water ponds necessary to prevent draw-down of wetlands, and by ensuring that water will continue to percolate into groundwater sources. There will be no adverse impact to aquifer recharge. Consequently, the criterion contained in Rule 40C-4.301(i)(f), Florida Administrative Code, is satisfied. Compliance with Rules 40C-4.301(1)(g), (h), and (k), Florida Administrative Code, has been stipulated to by the parties. Rule 40C-4.301(1)(i), Florida Administrative Code, requires that construction and operation of the System will be capable of being performed and of functioning properly. The System is a very simple, low-maintenance system that is expected to perform well. Consequently, the criterion contained in Rule 40C-4.301(1)(i) has been satisfied. Rule 40C-4.301(1)(j), Florida Administrative Code, requires that construction and operation of the System will be performed by an entity with the financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms of the permit. Walden Chase has designated the HOA as the operation and maintenance entity. In conformance with Section 7.1.2 of the Applicant’s Handbook, Walden Chase has submitted Articles of Incorporation, draft revisions to those Articles of Incorporation, and Covenants and Restrictions which provide sufficient powers to the HOA to operate the System, establish rules and regulations, assess members for associated costs, contract for services, and exist in perpetuity. Walden Chase will also establish an escrow account in the amount of 110 percent of the cost of mitigation for the purpose of establishing the financial responsibility for the mitigation, monitoring, and corrective action for wetland mitigation work. Consequently, the criterion contained in Rule 40C-4.301(1)(j), Florida Administrative Code, is satisfied. Rule 40C-4.301(2), Florida Administrative Code, and Section 12.2.4.5 of the Applicant’s Handbook set forth special requirements that are to be applied if an applicant is unable to meet water quality standards because the ambient conditions in the receiving body of water are below water quality standards. As set forth above, Walden Chase has provided reasonable assurances that water quality standards will not be violated. Consequently, the criterion contained in Rule 40C-4.301(2), Florida Administrative Code, is satisfied. Rule 40C-4.302(1)(a), Florida Administrative Code, requires that the District balance seven factors to determine whether construction and operation of the System will be contrary to the public interest. The public health, safety, and welfare factor is considered neutral because: (i) the System will not impact off-site properties; (ii) flood levels are controlled; and (iii) water flows are maintained. The factor related to conservation of fish and wildlife, including endangered or threatened species or their habitats is considered neutral because adverse impacts to those functions are offset by the mitigation plan. The factor related to erosion, navigation, the flow of water, and shoaling is considered neutral because an effective erosion control plan is in place, and no harmful effects are anticipated to navigation or the flow of water or as a result of shoaling. The factor related to fishing or recreational values and marine productivity in the vicinity of the activity is considered neutral because the mitigation would off-set any adverse impact. The factor related to significant historical and archaeological resources is considered neutral because none are anticipated to be on-site. The factor related to the current condition and relative functions being performed by areas affected by the proposed activity is considered neutral because the current condition and relative values of wetlands will be maintained. The System will be permanent, a condition which is considered neutral in balancing the public interest because any adverse impacts are off-set by the mitigation plan. On balance, the Project is not contrary to the public interest. Consequently, the criterion contained in Rule 40C-4.302(1)(a), Florida Administrative Code is satisfied. Rule 40C-4.302(1)(b), Florida Administrative Code, requires that construction and operation of the System will not cause unacceptable cumulative impacts. Such an analysis asks the question whether the proposed system, considered in conjunction with past, present and future activities in the drainage basin, would be the "straw that breaks the camel’s back" with regard to water quality, wetland, and other surface water functions. The mitigation for wetlands impacts is being conducted on-site and adequately off-sets any adverse impacts. If all projects in the same drainage basin undertook similar mitigation for the same type of wetland impacts, there would be no adverse cumulative effect. As attested by Petitioner’s expert, there will be no cumulative loss occurring on site. Consequently, the criterion contained in Rule 40C-4.302(1)(b), Florida Administrative Code, is satisfied. Rule 40C-4.302(1)(c), Florida Administrative Code, establishes additional criteria for Projects located in adjacent or in close proximity to certain classified waters. The parties have stipulated that the Project is not so located. Consequently, this criterion has been satisfied. Rule 40C-4.302(1)(d), Florida Administrative Code, requires certain conditions for projects which constitute vertical sea walls. The parties have stipulated that the Project does not contain vertical sea walls. Consequently, this criterion has been satisfied.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency’s proposed agency action. DONE AND ENTERED this 1st day of September, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of September, 1999. COPIES FURNISHED: Deborah Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082 David J. White, Esquire Suite 100 4804 Southwest 45th Street Gainesville, Florida 32068 Veronika Thiebach, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 John G. Metcalf, Esquire Pappas, Metcalf, Jenks, Miller & Reisch Suite 1400 200 West Forsyth Street Jacksonville, Florida 32202 Marsha Parker Tjoflat, Esquire Rogers, Towers, Bailey, Jones and Gay, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, West Palatka, Florida 32177
The Issue The issue is whether an Environmental Resource Permit should be issued to Luther E. Blake, Jr. and Irene Blake Caudle authorizing the construction of a stormwater management system to serve a single-family development known as Walnut Creek, Phases I and II, in Gainesville, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondents, Luther E. Blake, Jr. and Irene Blake Caudle (Applicants), authorizing the construction of a stormwater management system to serve Phases I and II of a single-family development known as Walnut Creek Subdivision in Gainesville, Florida. The system will be located on a 31-acre, L-shaped parcel of undeveloped, forested land. The proposed system includes a 135-lot single family subdivision, internal roadways with curb and gutter, a storm sewer system, and five dry retention ponds. The project site is located west of Northwest 13th Street (Highway 441) in the northwestern portion of the City of Gainesville between Northwest 39th Avenue (State Road 222) and Northwest 31st Boulevard, west of Palm Grove Subdivision, and east of Hidden Pines Subdivision. Petitioner, Glen Springs Preservation Association, Inc. (Association), is a corporation made up of an undisclosed number of persons, at least one of whom resides adjacent to or near the proposed project site. Petitioner, Elizabeth T. Furlow (Furlow), who did not indicate that she is a member, also resides with her husband near the project site. As set forth in the parties' Prehearing Stipulation, Petitioners contend that the proposed system fails to meet certain design and performance criteria, that the Applicants have failed to submit the appropriate documentation to satisfy the operation and maintenance entity requirements, and that the Applicants have failed to provide reasonable assurance that the system meets the general requirements for issuance of a permit. More specifically, they contend that the requirements of Rules 40C-42.023(1)(a)-(c), 40C-42.025(1), (3), (4), (5), (6), (7), (8), and (10), 40C-42.026(1)(a), (c), and (d), and 40C- 42.027, Florida Administrative Code, have not been met.2 On these technical issues, the parties have presented conflicting expert testimony, and the undersigned has accepted the more credible and persuasive testimony, as set forth in the findings below. Respondents have not stipulated to Petitioners' standing. Through the testimony of Furlow's husband, it was established that the Furlows live just south of the project site, approximately 100 yards north of Northwest 31st Boulevard near a creek known as Glen Springs Creek (Creek). The Furlows fear that if a permit is issued, runoff from the project site will cause further erosion of the Creek's banks and flooding during rainfall events. Although three persons who live adjacent to or near the project site appeared as witnesses, only one (Bonnie O'Brien) indicated that she is a member of the Association. Ms. O'Brien has lived just west of the Creek since 1969, around one-half mile from the project site. Over the years, and due to erosion caused by increasing development in the area, much of which began before the District began permitting stormwater systems, the Creek's banks have increased in depth from around a foot or so to as much as six feet. During large storm events, the Creek's waters rise up to as much as five feet in depth. Like the Furlows, Ms. O'Brien fears that runoff from the project will go into the Creek and adversely affect her property. There was, however, no evidence concerning the Association's interests, whether the Association is a Florida corporation, the number of members in the Association, and except for Ms. O'Brien, whether any of its members are substantially affected by the proposed activity.3 Design and performance criteria The Applicants propose to use a dry retention system consisting of five dry retention ponds ranging in depth from three to four and one-quarter feet which will be located mainly along the western boundaries of the project site. In general terms, stormwater runoff from the residential lots will sheet flow to roadways and alleys, will be collected by curbs and gutters, and then will be conveyed to the five ponds for water quality treatment. Rule 40C-42.025(1) requires that "[e]rosion and sediment control best management practices shall be used as necessary during construction to retain sediment on-site." The more persuasive evidence shows that the applicants have done so, and that the best management practices used by the Applicants are generally utilized throughout the development community. Therefore, the requirements of this rule have been met. Rule 40C-42.025(3) provides that unless applicable local regulations are more restrictive, "[n]ormally dry basins designed to impound more than two feet of water or permanently wet basins shall be fenced or otherwise restricted from public access." The proposed retention basins that have three-to-one (horizontal: vertical) side slopes will be fenced to prevent public access. The evidence also shows that there are no applicable, more restrictive local regulations. Under Rule 40C-42.025(4), "[a]ll stormwater basin side slopes shall be stabilized by either vegetation or other materials to minimize erosion and sedimentation of the basins." As to this requirement, the evidence establishes that all of the stormwater basin side slopes will be stabilized by vegetation to minimize erosion and sedimentation of the basins, as required by the rule. Further, the proposed retention basin side slopes are four-to-one and three-to-one. Slopes of this dimension are typically stable and will not easily erode. Rule 40C-42.025(5) requires that the systems be designed so that they "accommodate maintenance equipment access" and "facilitate regular operational maintenance." The evidence shows that the Applicants own the entire project site, and each of the five retention ponds can be accessed from roads and alleys within the project site. Rule 40C-42.025(6) requires that an applicant "obtain sufficient legal authorization as appropriate prior to permit issuance for stormwater management systems which propose to utilize offsite areas to satisfy the requirement in subsection 40C-42.023(1), F.A.C." Because the Applicants are not proposing to use any offsite areas for the system, and the system is located entirely on the project site, no "legal authorization" from other persons is required. Under Rule 40C-42.025(7), the system "shall provide gravity or pumped discharge that effectively operates under . . . [m]aximum stage in the receiving water resulting from the mean annual 24-hour storm." Calculations performed by the Applicants, and verified by the District's independent calculations, show that the system is designed to retain all of the runoff from the mean annual 24-hour storm event. Therefore, this rule has been satisfied. Rule 40C-42.025(8) provides that if a system serves a new construction area with greater than 50 percent impervious surface, an applicant is required to demonstrate that "post- development peak rate of discharge does not exceed the pre- development peak rate of discharge" for the mean annual 24-hour storm event. If the system serves a new construction area with less than 50 percent impervious surface, however, the requirements of this rule do not apply. The evidence shows that the proposed retention system will serve a new construction area (around 12 acres) with less than 50 percent impervious area. Therefore, the rule does not apply. Even so, the Applicants demonstrated that the post- development peak rate of discharge from the project site will not exceed the pre-development peak rate of discharge for the 24-hour storm event. In fact, the post-development peak rate of discharge from the project site during the 24-hour mean annual storm event will be zero. Finally, Rule 40C-42.025(10) requires in part that the construction plans and supporting calculations be "signed, sealed, and dated by an appropriate registered professional." The evidence shows that the final set of plans submitted in January 2002 by the Applicants was signed and sealed by H. Jerome Kelly, a professional engineer.4 Specific design and performance criteria Rule 40C-40.026(1)(a) requires that the retention system provide retention of stormwater runoff in one of four ways. Here, the Applicants have designed the system to provide "[o]n-line retention of an additional one half inch of runoff from the drainage area over the volume specified in subparagraph 1. above." Subparagraph 1. requires "[o]ff-line retention of the first one half of runoff or 1.25 inches of runoff from the impervious area, whichever is greater[.]" Because the system will provide on-line retention of a minimum of one inch of runoff from the project area, plus 1.25 inches of runoff from the impervious soil in the project/drainage area, it is found that the capacity of the proposed retention system is more than adequate to capture the quantity of stormwater runoff required by this rule. Under Rule 40C-42.026(1)(c), the system must be designed to "[p]rovide the capacity for the appropriate treatment volume of stormwater specified in paragraphs (a) and (c) above, within 72 hours following the storm event assuming average antecedent moisture conditions." To assure compliance with this rule, and to demonstrate that the system meets the required recovery of the water quality treatment volume, the District performed modeling to predict the vertical infiltration rate and the groundwater mounding effects of the proposed retention system. For the reasons stated below, it is found that the system will provide the required amount of treatment volume capacity within 72 hours of a storm event assuming average antecedent moisture conditions, as required by the rule. The District used one of the latest versions of the MODRET computer modeling program, a methodology routinely used by the District to support an application for this type of retention system. That program takes into account vertical percolation into the soil; once the water reaches the water table, the model then takes into account the lateral or horizontal movement of the water out of the pond. The model is used to determine whether the required water quality treatment volume, which is significantly less than the storage volume in the ponds, will draw down within three days. The modeling confirmed that this requirement will be satisfied. Data from the Applicants' on-site soil survey was used in the model to establish the depth below ground surface of the seasonal high water table level. This resulted in a conservative assumption of an above-normal average antecedent moisture condition beneath the retention ponds. The Applicants also collected soil samples from the project site, including those areas where the retention ponds will be located, and they performed laboratory tests in accordance with ASTM D2434 to calculate the vertical hydraulic conductivity and the horizontal hydraulic conductivity for those soils. The results of both tests fall within accepted ranges as stated in the published soils texts and governmental soils surveys for the project area. In addition, the Applicants conducted an independent test to determine the mean seasonal high water table on the project site. Based on visual observations of the soil samples, the Applicants determined that the mean seasonal high water table is between six and seven feet below ground surface. The visual observation of the soil samples is compatible with the results of Petitioners' soil augers obtained off the project site. As noted earlier, the proposed retention ponds will have a depth of three to four and one-quarter feet, which places the bottom of the ponds above the mean high water table as determined by the Applicants' calculations and as stated in the soils survey for Alachua County. Therefore, the dry retention ponds should not be considered impervious surfaces. Finally, Rule 40C-42.026(1)(d) requires that the retention system "[b]e stabilized with pervious material or permanent vegetation cover." The evidence shows that the proposed retention system will be stabilized with permanent vegetative cover. Other requirements and concerns Runoff from other developed properties in the vicinity of the proposed project site discharges into the Creek, contributing to erosion in the Creek. Not all of these existing developments have stormwater management systems on-site, since some of the older properties were built before the District assumed regulation over this activity. The proposed system can be effectively operated and maintained without causing or exacerbating the erosion problems that currently exist within the Creek system. This is because once the system is built, the amount of runoff leaving the site will be less than what is now present in the pre-development state. Thus, the project, as now designed, will not adversely affect drainage and flood protection on adjacent or nearby properties. Through the submission of a copy of the Articles of Incorporation and Declaration of Covenants for the Walnut Creek Homeowner's Association, the Applicants demonstrated that the District's requirements regarding the operation and maintenance of the proposed system after completion of construction will be met, as required by Rule 40C-42.027(4).
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 application number 42-001- 71000-1 of Luther E. Blake, Jr. and Irene Blake Caudle for an Environmental Resource Permit. DONE AND ENTERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 14th day of February, 2002.
Findings Of Fact On May 24, 1994, Respondent, Jeff Dyson, applied for a dredge and fill permit from the Department to place an unspecified volume of fill within an historically-existing drainage ditch which carries water to the St. Johns River. The proposed project would direct the drainage currently flowing through the ditch into a 15-inch culvert, which would be installed on the property identified as Lot 3 of Riverwood Subdivision. Swales and structures associated with the culvert are to be constructed during the project and are considered a part of the proposal. See Department's Exhibit 1. The proposed project would place fill in waters of the State, thereby necessitating the Department's approval of the permit. The proposed project, as stated above, is located on Lot 3 of Riverwood Subdivision. The Petitioner owns Lot 4 of Riverwood Subdivision which is located to the east and downstream of the proposed project. The proposed project is located in Riverwood Subdivision which is already developed and single- family residences have been built on both of the lots adjacent to Lot 3. Respondent, Jeff Dyson, seeks the permit in order to develop Lot 3 and build a house on it. The drainage ditch which would be filled runs west to east across the center of Lot 3 and is between four and six feet wide. The depth of this 4itch increases as it moves west to east, reaching a depth of four feet at the eastern edge of the property, where it adjoins the Petitioner's lot. The proposed project would re-route the storm water runoff, which flows into the drainage ditch, around the single-family residence which Respondent, Jeff Dyson, proposes to build. The storm water runoff would be routed through a buried 15-inch culvert from the point of intersection of the existing ditch on the western boundary of the property to the point of discharge at the intersection of the existing ditch and the eastern boundary of the property. Filling of the drainage ditch previously was permitted by the Department in 1984 as part of the subdivision's development plan which authorized Robert A. Weyand to fill the ditch and construct along the southern boundary of the subdivision a swale which would redirect the then-existing drainage through the swale. The swale was constructed; however, the ditch was never filled. The swale carries the majority of the drainage entering the subdivision under Pine Street down the southern boundary of the subdivision to the St. John's River, Two 24-inch culverts under Riverwood Avenue remain from the drainage system which predates Mr. Weyand's permit. According to Mr. Potter, this old drainage system carries peak loads into the drainage ditch which Respondent, Jeff Dyson, proposes to fill at Lot 3. The 24-inch culverts were installed when the subdivision was developed in 1981; however, one of the culverts is completely blocked and the other is only partially open. Contrary to Mr. Potter's assertions about peak loads, the ditch collects water in light rains, and storm water pools on the southwesterly side of Riverwood Avenue and overflows Riverwood Avenue into the ditch flowing easterly in the direction of the proposed project. Riverwood Avenue, the only street in the subdivision, was designed to direct storm water along its curb and gutter system from west to east. This water adds to the flow over Riverwood Avenue at the point of the culvert where it joins with water running in the old drainage system and flows into the drainage ditch. The project, as designed by Mr. Potter, would not adversely effect the quantity of water east of the project. The project was designed so that there would no increase in the rate of runoff with the construction of the proposed residence. The project should not create any flooding downstream because there would be no alteration to the quantity or direction of the existing flows. Mr. Potter used the Department of Transportation (DOT) rainfall intensity duration frequency curves to determine the rainfall amount from the 1.88 acres on the western end of the subdivision upstream of the project. The DOT rainfall intensity duration frequency curves are widely accepted criteria for determining runoff for residential developments. In computing the amount of drainage flow which the 15- inch culvert would have to handle, Mr. Potter considered (1) the rainfall for a ten-year storm on the 1.88 acres at the westerly end of the subdivision, and (2) the flow under Pine Street through the existing culvert, which constitutes a limit to the potential flow into the drainage system at the southwest corner of the subdivision. The 15-inch culvert designed by Mr. Potter would handle two times the amount of water generated based upon the stated assumptions in a ten-year storm event. The proposed project would not increase these existing flows; however, the quantity of water exceeds the flow from the western portion of the subdivisions computed by Mr. Potter which follows the natural slope of the terrain into the old existing ditch system. The Petitioner introduced a video of the storm water collection and flow in a light rain at the location of the culvert under Riverwood Avenue. This video shows that the existing culverts under Riverwood Avenue will not handle the flow of water in the ditch southwest of Riverwood Avenue; therefore, the storm water backs up and flows over Riverwood Avenue at this point into the ditch east of Riverwood Avenue. Other than the ditch under Pine Street and the runoff from the 1.88 acres at the western end of the subdivision, the only other source of storm water runoff is the runoff on Riverwood Avenue. Mr. Potter observed the video and indicated that the amount of water appeared to exceed his computations. The Petitioner testified regarding the water levels in the ditch underneath his foot bridge over the ditch. During significant storm events, the water level reaches the bottom of the foot bridge. The area underneath the foot bridge exceeds the area of a 15-inch culvert. Water flow during a significant storm is unrestricted downstream of the foot bridge, and is not dammed up. The proposed project will constitute a dam on the existing drainage ditch with a 15-inch outfall. Based upon the video of the storm water runoff generated by a light rain, the Petitioner's observations of storm water runoff in the ditch during a significant storm event, and the design of the storm water runoff on Riverwood Avenue, it can be reasonably anticipated that the proposed project will dam up water to the west of the project to the highest level of the swale in front of the proposed project. Although the proposed project will not adversely effect the quantity of water, the water impounded by the project would cause a significant flooding problem for the upstream property owner. The design of the culvert does not provide for protection against children being pulled into the culvert system. The water impounded by the proposed culvert system would be an attraction to children who would be at risk of being pulled into the culvert. It is particularly dangerous because the ditch is much shallower southwest of Riverwood Avenue, and when flooded, the depth of the ditch northeast of Riverwood Avenue is not apparent. The water quality standards are currently being met at the site of the proposed project. The proposed project, as constructed, is not expected to cause any water quality violations. The permit contains conditions designed to maintain water quality during actual construction. These conditions include General Conditions No. 4 and 5 and Special Conditions 5- 10. Reasonable assurances were provided that water-quality standards will not be violated by the proposed project if built in accordance with the designs submitted. The design of the 15-inch culvert includes a 90 degree change of direction before connecting to the outfall on Lot 4. This 90-degree change in direction will dissipate the energy of the water, reducing the likelihood of scouring or erosion at the outfall point. Although the project is designed to eliminate scouring, the Department has included a condition in the permit, which requires Respondent, Jeff Dyson, to correct scouring, shoaling, or other alterations of the downstream portion of the drainage way. The flooding to the upstream property owner can be minimized by lowering the level of the swale in the front of the project to create an emergency spillway. The applicant has provided reasonable assurance that the water quality will not be adversely effected, and the proposal will not increase the volume of water. The project will not adversely effect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The ditch does not contain any fish or wildlife. The subdivision in which the project is located is almost completely built out. Therefore, there are no endangered or threatened species living in the area. The project will not adversely effect navigation or the flow of waters and will not cause harmful erosion or shoaling. The project will not adversely effect fishing or recreational values or marine productivity. There are no fishing or marine recreational values associated with drainage ditches. The project will be permanent in nature. The project will not adversely effect significant historical or archeological resources. The current function of the ditch is to convey storm water to the St. John's River. This function will be effected as indicated above because the proposed project constitutes a dam with a 15-inch outfall. If the 15-inch culvert is incapable of carrying the storm waters introduced into the ditch west of the proposed project, the storm water impounded by the proposed project will flood the property west of the project to the level of the highest point of the swale in the front of the project. By redesigning this swale to have a maximum elevation of ten feet or less feet, the flooding will be retained within the approximate elevations of the existing ditch. In addition, steps can be taken to minimize the potential hazzard to children caught in the ditch. There are no cumulative impacts associated with this project. Except as noted above, the applicant provided reasonable assurances that the project is not contrary to the public interest, as defined by Section 373.414, Florida Statutes. The Department uses a balancing test, which consists of taking the public-interest criteria and weighing the pros and cons of a specific project. The ultimate question is whether the proposed project is contrary to the public interest. The Department believed that it was not contrary to the public interest. Based upon the evidence presented, the project has two adverse impacts, as indicated in Paragraphs 16 & 27. However, these can be eliminated or minimized to an acceptable level by the modifications recommended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department approve issuance of the permit with the added conditions that the swale and driveway at the front of the proposed project not exceed an elevation of ten feet and that the culvert be constructed to protect children from being pulled into the intake. DONE and ENTERED this 21st day of November, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Jeff Dyson 395 Corporate Way Orange Park, Florida 32065 Michael S. McGurk 297 Riverwood Drive Orange Park, Florida 32073 Lynette Ciardulli, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Al Potter 905 North Street Jacksonville, Florida 32211 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues to be decided in this case are whether Respondent is liable for the violations charged in the NOV, whether Respondent should pay the penalties assessed in the NOV, and whether Respondent should be required to take the corrective actions demanded in the NOV.
Findings Of Fact On August 7, 2014, Petitioner issued the NOV, charging Respondent with failure to maintain its stormwater facility in compliance with its permit and state law. Respondent filed an answer and request for a hearing. The matter was referred to the Division of Administrative Hearings. Petitioner Department of Environmental Protection (“Department”) is the state agency having powers and duties related to the regulation of stormwater facilities. Respondent Classic Homebuilders Incorporated is a Florida corporation and holds a General Stormwater Permit issued by the Department for the construction and operation of a stormwater facility at 5100 Terra Lake Circle, Pensacola, Florida. On April 9, 2013, Department staff inspected Respondent’s stormwater facility and determined that the ponds do not percolate within 72 hours as required by the permit. On July 23, 2014, Department staff inspected the facility again and determined that the percolation problem had not been corrected. Debris and silt were observed in the stormwater facility. Respondent has not submitted an “as-built” certification. The Department incurred $500 in expenses associated with its investigation of this matter. That is a reasonable amount.
Findings Of Fact The Proposed Permit This case involves a 65-acre site in north Lee County owned by the City of Ft. Myers. At all material times, the land has been zoned under industrial- equivalent designations. By leases that are not part of this record, Ft. Myers has leased 21.4 acres of the 65 acres to various governmental agencies, including Lee County, Lee County Sheriff's Office, and possibly the Florida Department of Juvenile Justice (formerly known as Department of Health and Rehabilitative Services). The following facilities are presently located on the 21.4 acres: Juvenile Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office Aviation Department, and Emergency Operations Center. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6 undeveloped acres to Lee County for a term of 50 years. This lease allows Lee County to use the 43.6 acres for $1 per year, but only for the operation of a Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may terminate the lease if Lee County ceases to operate the facility. Likewise, Lee County may terminate the lease if the Department of Juvenile Justice ceases to fund the County's operation of the facility. Under the lease, preference is given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates liability to Lee County for claims or damages arising from released fuels, including from pipelines. The lease is not assignable without Ft. Myer's consent. By agreement dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6- acre parcel to the Department of Juvenile Justice for the purpose of the construction of a juvenile residential commitment facility. Lee County receives no rent from the Department of Juvenile Justice. In Paragraph 10 of the agreement, the Department of Juvenile Justice agrees to maintain, at its expense, "all improvements of every kind . . .." Lee County must make any repairs to improvements if the Department of Juvenile Justice fails to do so. By subsequent agreement, Respondent Department of Management Services (DMS) became the agent for the Department of Juvenile Justice for the design, permitting, and construction of the juvenile justice facility. By Application for a surface water management permit executed June 16, 1994, DMS applied for a surface water management permit for the construction and operation of a 10.9- acre project known as the Lee County Juvenile Commitment Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County and subleased to the Department of Juvenile Justice. The application states that the existing 21.4 acres of developed sites, which are leased under separate agreements to different governmental entities, "will be permitted as is." The Staff Review Summary of Respondent South Florida Water Management District (SFWMD) describes the purpose of the application as follows: This application is a request for Authorization for Construction and Operation of a surface water management system to serve a 10.9 acre Institutional project discharging to Six Mile [Cypress] Slough via onsite wetlands and road- side swales. The application also requests Authorization for Operation of a surface water management system serving a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Staff recommends approval of both authorizations with conditions. The Staff Review Summary accurately states that the owner of the land is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases to Lee County the 21.4 acres devoted to the five existing facilities. Although Lee County probably is a lessee of some of these parcels, the Lee County Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels. One of the other parcels may involve a state agency, again under either a lease or a sublease. The Staff Review Summary inaccurately states that the project developer is Lee County. The project developer is DMS or its principal, the Department of Juvenile Justice. The Staff Review Summary reviews the existing development on the 21.4 acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9- acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's Office Aviation Department, and 3.9-acre Emergency Operations Center. The Staff Review Summary states that the footer of the Juvenile Detention Center was inspected in February 1980. The site drains into a 1.2- acre retention pond, which was a natural pond dug out to accept the drainage from the Juvenile Detention Center. A small amount of surface flow drains from the Juvenile Detention Center to a perimeter swale that drains west into a ditch running along Ortiz Avenue. The Staff Review Summary states that the building permit for the Price Halfway House was issued in October 1982. The site drains into the 1.2-acre retention pond, which was apparently enlarged a second time to accept the additional flow. A small amount of the flow from the Price Halfway House also drains to the perimeter swale and west into the Ortiz Avenue ditch. The Staff Review Summary states that the building permit for the Lee County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a determination that no permit was required for two additions to the stockade in 1988 and 1989. For the additional impervious surface added by these additions, one inch of water quality treatment was provided. After the abandonment of a pumping system, drainage of the stockade site consists of water building up in existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The Staff Review Summary adds that a small retention area constructed at the southeast corner of the site treats stormwater from the stockade and the Sheriff's Office Aviation Department. The summary adds that a small amount of stormwater drains north into an exterior swale that drains into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Sheriff's Office Aviation Department in August 1977. Stormwater from the site sheetflows to exterior swales north and south of the building. When the swales fill up, the water flows into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Emergency Operations Center on October 11, 1977. Drainage from the center flows directly into the Ortiz Avenue ditch. Under "Water Quality," the Staff Review Summary reports that SFWMD "did not require compliance with discharge rate or criteria" based on Section 1.6, Basis of Review for Surface Water Management Permit Applications within the [SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD for the construction and operation of surface water management systems. The summary adds that there have been no "water quality or quantity complaints associated with this site over the past 18 years since its initial construction." Noting that a surface water management permit is requested for the entire 65-acre parcel, the Staff Review Summary states that the above-described drainage systems for the five existing facilities are "operational and will remain as they now exist." Turning to the proposed development, the Staff Review Summary states that the remaining 43.6 undeveloped acres "will also be leased to Lee County by the City for the proposed commitment facilities." The facilities are accurately described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which will be drained by internal drainage swales and culverts flowing into detention areas, which will discharge through a control structure into onsite wetlands leading to the Ortiz Avenue swale. Addressing designed discharge rates, the Staff Review Summary acknowledges that the bootcamp's discharge rate will exceed the allowable rate for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the design rate is .37 cfs. The Staff Review Summary explains that this discrepancy results from the use of the minimum size orifice (three inches) in the control structure. Addressing water quality, the Staff Review Summary reports that commercially zoned sites are required to provide one-half inch dry pretreatment for water quality unless reasonable assurance can be provided that hazardous material will not enter the surface water management system. Determining that no hazardous material will be stored or generated on the site, SFWMD did not require the one-half inch dry pretreatment of runoff. Noting that no surface water management permits have ever been issued for any part of the 65-acre parcel, the Staff Review Summary recommends that, subject to the customary Limiting Conditions, SFWMD issue: Authorization for Construction and Operation of a 10.9 acre Institutional Project discharging to Six Mile Cypress Slough via onsite wetlands and roadside swales, Operation of a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Limiting Condition 4 states that the permittee shall request transfer of the permit to the "responsible operational entity accepted by [SFWMD], if different from the permittee." Limiting Condition 8 adds: A permit transfer to the operation phase shall not occur until a responsible entity meeting the requirements in section 9.0, "Basis of Review . . .," has been established to operate and maintain the system. The entity must be provided with sufficient ownership or legal interest so that it has control over all water management facilities authorized herein. Special Condition 11 states: "Operation of the surface water management system shall be the responsibility of Lee County." The Permittee and the Entity Responsible for Maintenance The proposed permit consists of two authorizations. The first authorization is for the construction and operation of the surface water management system on the 10.9-acre parcel on which will be constructed the bootcamp and halfway house. The second authorization is for the operation of the existing surface water management system on the already-developed 21.4 acres and the unimproved surface water management system on the remaining 32.7 acres. There are two problems with the designation of Lee County as the entity responsible for maintaining the permitted surface water management systems. Basis of Review 9.1.B states: To satisfy [P]ermit [L]imiting [C]ondition [8], the Permittee must supply appropriate written proof, such as either by letter or resolution from the governmental entity that the governmental entity will accept the oper- ation and maintenance of all the surface water management system components . . .. The authorization for operation of the systems on the 21.4-acre and 32.7-acre parcels does not await any construction. Once the permit is issued, the authorization is effective. Therefore, all prerequisites to the designation must have been satisfied before the operation permit issues. For the 21.4-acre parcel, DMS has not provided reasonable assurance that Lee County is the lessee or sublessee of all of the parcels underlying the five existing facilities. In fact, it appears that Lee County is not the lessee or sublessee of all of these parcels. Even if Lee County were the lessee or sublessee of these five parcels, DMS has not provided reasonable assurance that Lee County has assumed responsibility for the maintenance of the surface water management system for the five parcels. Contrary to Basis of Review 9.1.B, there is no written agreement by Lee County to assume operational responsibility, nor is there even an actual agreement to this effect. SFWMD's rules sensibly require that written consent be obtained before the operation permit is issued. Likewise, DMS has failed to show that Lee County has agreed to assume responsibility for the operation and maintenance of the surface water management system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before issuing the permit because no construction will precede operation for the surface water management system on this parcel. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel is leased to Lee County as part of the 43.6- acre parcel. But in the December 17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes responsibility for maintaining all improvements, which arguably includes drainage improvements. As between Ft. Myers and Lee County, Lee County assumes secondary liability for the maintenance of all improvements. But the failure of the Department of Juvenile Justice to do so would likely represent a default under the agreement. In such a case, the lease and separate agreement probably would either be in litigation or Lee County would have terminated its obligations under the contracts. In either case, it is unlikely that Lee County would perform its secondary responsibility to maintain the drainage improvements, especially where it is receiving no rent from the Department of Juvenile Justice and priority is given to Ft. Myers juveniles in admission decisions. Construction will precede operation as to the 10.9- acre parcel so the parties have an opportunity, even after the construction and operation permit is issued, to secure the necessary written consent before the operation permit goes into effect. But similar deficiencies exist with respect to the 10.9- acre parcel because the same agreement imposes upon the Department of Juvenile Justice, not Lee County, the obligation to maintain improvements. An additional complication arises as to the 10.9-acre parcel. The Department of Juvenile Justice intends to contract with one or more private entities to operate the bootcamp and halfway house, so there is at least one more party that Lee County could claim was responsible for maintenance of the surface water management system. The question of who is responsible for maintaining the surface water management systems is important. Drainage quantities and directions can change if swales clog up with vegetation or other matter. In this case, one roadside swale in the area of the 21.4-acre parcel is blocked with vegetation. DMS and SFWMD have thus failed to provide reasonable assurance that the designated entity has assumed responsibility for the maintenance and operation of the existing systems or will assume responsibility for the maintenance and operation of the proposed system following its construction. Permit for Existing Development Section 1.6, Basis of Review, states: [SFWMD] issues construction and operation permits for proposed surface water management activities and operation permits for existing systems. The criteria herein are specifically designed to apply to proposed activities (construction and operation permits). Therefore, some of the criteria may not be applicable to the permitting of existing systems (operation permits). For example, in some cases, existing systems may not meet flood protection criteria. Criteria deviation for existing systems will be identified in staff reports. SFWMD has produced no evidence explicating the extent to which existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are entitled to operating permits without meeting some of the criteria applicable to proposed systems, such as the system on the 10.9-acre parcel. There is nothing whatsoever in the record to explain why certain existing systems might not have to meet certain criteria, such as flood protection criteria. Except for the quantity deviation discussed below, there is nothing in the record disclosing the extent to which SFWMD has waived, or even considered the applicability of, certain or all criteria prior to the issuance of operation permits for the existing systems. In practice, SFWMD does not adhere even to the vague standards implied in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit existing systems "as is, where is," as long as they have had no reported problems. There are numerous deficiencies in the "as is, where is" unwritten policy, apart from the obvious one that it conflicts with the assurance of 1.6 that only "some of the criteria may not be applicable" to existing systems. First, the record does not define what a "problem" is. Second, the record discloses no means by which reported problems are collected and later accessed, such as by a parcel index. The "as is, where is" policy is an abdication of the limited responsibilities that SFWMD imposes upon itself in 1.6, especially when applied to the present facts. The facts are straightforward. Neither Ft. Myers, Lee County, nor any other party has ever obtained a permit for any surface water management system, despite numerous improvements in the past 20 years requiring such permits, including the construction of a heliport, at which maintenance and refueling of helicopters takes place. In two relatively minor cases, discussed below, SFWMD erroneously determined that no permit was required. In one of those cases, the applicant, Lee County, candidly admitted the existence of a flooding problem. Based on the present record, neither DMS nor SFWMD has justified the issuance of an operation permit for the systems on the 21.4- and 32.7-acre parcels based either on Basis of Review 1.6 or on the "as is, where is" unwritten policy. Construction of the five improvements on the 21.4 acres began between 1975 and December 1977 with construction of a portion of the Lee County Stockade building and parking, Emergency Operations Center building and parking, and a now- removed barn for the Lee County Sheriff's Office. At the same time, a lake was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of the 21.4 acres were converted to impervious surface. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were converted to impervious surface by the construction of a perimeter dike and road. During this period, construction commenced on the Juvenile Detention Center, adding another 1.63 acres of impervious surface. Between March 1980 and December 1981, additions were made to the Lee County Stockade building and the lake for an additional 0.45 acres of impervious area. Between December 1981 and March 1984, the Price Halfway House building and parking were constructed, adding another 0.79 acres of impervious surface. Between March 1984 and February 1986, a heliport facility and landing area were constructed for the Lee County Sheriff's Office, adding another 1.01 acres of impervious surface. Between February 1986 and February 1990, an additional 2.31 acres of impervious surface were added through additions to the Lee County Stockade and parking area, juvenile detention center, and Emergency Operations Center parking area. Between February 1990 and April 1993, another addition to the Lee County Stockade added 0.62 acres of impervious surface. An additional 0.17 acres of lake was excavated. During this time, applicable rules and statutes required permits for the construction of "works" affecting surface water, including ditches, culverts, and other construction that connects to, or draws water from, drains water into, or is placed in or across the waters in the state. The buildings, parking, other impervious surfaces, ditches, swales, dikes, lake excavations, and, at one point, addition of a now- abandoned pump all constituted "works" for which surface water management permits were required. In 1988, Lee County or Ft. Myers applied for an exemption for an addition to the Lee County Stockade. The basis for the claim of exemption was that the parcel consisted of less than 10 acres and the total impervious surface did not exceed two acres. Although rules in effect at the time required consideration of the contiguous 65 acres under common ownership and the total impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD erroneously issued an exemption letter. The second instance involving a claim of exemption took place in 1989 when Lee County submitted plans for another addition to the Lee County Stockade, adding 0.51 acres of impervious surface. The submittal acknowledged a "flooding" problem, but promised a master drainage plan for the "entire site." SFWMD determined that no permit would be required due to the promise of a master drainage plan. No master drainage plan was ever prepared. The flooding problem precluded issuance of the operation permit on an "as is, where is" basis for the already-developed 21.4-acre parcel, even assuming that SFWMD adequately justified the use of this unwritten permitting procedure. In fact, SFWMD has not explained adequately its "as is, where is" permitting procedure or even the undelineated permitting criteria referenced in 1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential permitting of existing systems. The owner and developer constructed the existing systems in near total disregard of the law. The two times that the owner and developer complied with the permitting process involved small additions for which exemptions should not have been granted. In one case, SFWMD exempted the proposed activity due to its error calculating minimum thresholds as to the areas of the parcel and the impervious surface. In the other case, SFWMD exempted the proposed activity partly in reliance on a promised master drainage plan that was not later prepared. To issue operation permits for the existing systems on the 21.4- and 32.7-acre parcels would reward the owner and developer of the 65-acre parcel for noncompliance with the law and provide an incentive for similarly situated landowners and developers likewise to ignore the law. Before issuing operation permits on systems that have received no comprehensive review and that have been added piecemeal over the years, SFWMD must evaluate the surface water systems on the entire 65-acre parcel to determine whether they meet all applicable criteria. The "as is, where is" unwritten policy has no applicability where there have been reports of flooding. If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6, it must be prepared to identify and explain which criteria are waived and why. Water Quality Basis of Review 5.2.2 provides that projects that are zoned commercial or industrial, such as the present one, must provide one-half inch of "dry" detention or retention pretreatment, unless reasonable assurances are provided "that hazardous materials will not enter the project's surface water management system." There is no existing or proposed dry detention on the 65 acres. The existing development includes the Sheriff's Office Aviation Department, which serves as a heliport. The fueling and maintenance of helicopters means that contaminants may enter the stormwater draining off the site. The functioning of the surface water system on this site is therefore of particular importance. There also may be more reason to question the functioning of the surface water system on this site. It is south of the Lee County Stockade, where flooding has been reported. The heliport site has also been the subject of more elaborate drainage improvements, such as the location of a small retention pond near the Stockade boundary and a pump, the latter of which has since been abandoned. The existing system on the 21.4-acre parcel, as well as the existing and proposed systems on the remainder of the 65 acres, require dry pretreatment for reasons apart from the presence of the heliport. The materials likely to be used with the existing and proposed developments are similar to those found on residential sites. SFWMD and DMS contend that there is therefore no need to require dry pretreatment as to these areas. However, the existing and intended institutional uses, such as jails and bootcamps, represent an intensity of use that exceeds the use typical in areas zoned residential. This increased intensity implies the presence of typical residential contaminants, such as petroleum-based products or cleaning solvents, but in greater volumes or concentrations, if not also, in the case of solvents, different compositions. The lease addresses potential liability for released petroleum. In the absence of a showing that such hazardous materials are prevented from entering the runoff, SFWMD must require dry pretreatment for the systems occupying the entire 65-acre parcel. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quality criteria or that the proposed system will satisfy applicable water quality criteria. Water Quantity The 65-acre parcel adjoins Ortiz Avenue on the west and property owned by Petitioners on the east and south that is undeveloped except for a borrow pit some distance from the 65- acre parcel. The parcel is roughly 1000 feet east- west and 2700 feet north-south. The proposed halfway house is at the north end of the parcel. The halfway house is situated between a proposed detention pond on the west and a recreation field on the east. A paved road divides the halfway house from the rest of the 65- acre parcel. South of the road are the Lee County Stockade on the west, which abuts Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates these two sites. The berm runs from the road along the west shore of the twice- enlarged 1.2- acre retention pond and the west boundary of the Price Halfway House, which is south of the Juvenile Detention Center. To the west of the berm, south of the Lee County Stockade, is the Sheriff's Office Aviation Department or heliport facility, which abuts Ortiz Avenue. South of the Aviation Department is an outparcel used by the Florida Department of Corrections that also abuts Ortiz Avenue. East of the outparcel is the proposed halfway house with a proposed detention pond west of the halfway house and south of the outparcel. The Emergency Operations Center, which abuts Ortiz Avenue, is south of the detention pond and surrounded on three sides by the 32.7 acres to be left undisturbed at this time. There are perimeter berms around all of the parcels except for the Juvenile Detention Center and Price Halfway House, which are served by a single berm, and the Emergency Operations Center, which appears not to be bermed. The prevailing natural drainage is not pronounced either by direction or volume because the land is nearly level. The natural direction of drainage is to the south and west and remains so on Petitioners' land to the east and south and the undisturbed 32.7 acres to the south. The variety of drainage directions within the remainder of the 65- acre parcel reflects the extent to which berms, swales, ponds, pumps, roads, buildings, parking areas, and other works have been added to the northerly parcels. Runoff reaching the northern boundary of the 65 acres will be diverted due west around the proposed detention pond to the swale running along the east side of Ortiz Avenue. Runoff from the recreation field and halfway house building and parking area drain into the proposed detention pond, which releases water through a gravity control device to the Ortiz Avenue swale. There appears to be a connection routing some runoff from the south side of the recreation field to the Juvenile Detention Center, where it travels west in a roadside swale to the Ortiz Avenue swale. A little less than half of the area of the Juvenile Detention Center site drains into perimeter swales along the north and east borders and then to the west before emptying into the Ortiz Avenue swale. The remainder of the Juvenile Detention Center drains into the retention pond. The same is true of the Price Halfway House. The Lee County Stockade drains to each of its borders where the water then runs west along the north or south border to the Ortiz Avenue swale. The southern half of the Lee County Stockade site drains into the small retention pond at the northwest corner of the Sheriff's Office Aviation Department. Most of the runoff from the heliport facility runs to the southwest corner of the parcel, which is the location of the abandoned pump. From there, the runoff continues to the Ortiz Avenue swale. Very little if any of the runoff from the heliport enters the small retention pond on the northwest corner of the parcel. The bootcamp drains into the detention pond, which then releases water by a gravity control structure into a portion of the undisturbed 32.7-acres before entering the Ortiz Avenue swale. The Emergency Operations Center site drains in all directions away from the building and parking area, eventually draining into the Ortiz Avenue swale. Stormwater discharge rates from the proposed halfway house and bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively. SFWMD and DMS contend that the excessive discharge from the bootcamp is acceptable because the gravity control device for the proposed detention pond is of the smallest size allowable, given the indisputable need to avoid clogging and ensuing upstream flooding. Initially, SFWMD approved the discharge rates for the halfway house and bootcamp because, when combined, they did not exceed the total allowable value. However, this approach was invalid for two reasons. First, the two sites contain entirely independent drainage systems separated by several hundred feet. Second, after correcting an initial understatement for the value for the halfway house, the actual total exceeds the maximum allowable total. SFWMD contends that the slight excess is acceptable because of the inability to use a smaller orifice in the gravity control structure. However, the discharge quantity easily could have been reduced by design alternatives, such as enlarging the detention pond, which is mostly surrounded by land that is to be left undisturbed. The ease with which the minimum-orifice problem could have been avoided rebuts the presumption contained in Basis of Review 7.2.A that excessive discharge quantities are presumably acceptable if due to the inability to use a smaller orifice. Also, SFWMD and DMS have failed to show that the effect of the excessive discharge quantities is negligible, so the exception in the SFWMD manual for negligible impacts is unavailable. Neither SFWMD nor DMS provided any reasonable assurance as to the quantity of discharge from the 21.4 acres. Rough estimates suggest it is more likely that the quantity of discharge may greatly exceed the allowable maximum. SFWMD must evaluate the water-quantity issues before issuing operation permits for the systems on the 21.4- and 32.7- acre parcels and a construction and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines that all water quantity criteria are met as to the existing systems, it may issue operation permits for the systems on the 21.4- and 32.7- acre parcels. Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to waive compliance with any or all quantity standards in reliance on Basis of Review 1.6, evaluate the effect of the waiver and explain the basis for the waiver. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quantity criteria or that the proposed system will satisfy applicable water quantity criteria. Impacts on Adjacent Lands Petitioners' property is impacted by the above- described drainage in two ways. First, Petitioners' property abutting the east side of Ortiz Avenue, south of the 65 acres, is especially vulnerable to flooding because the Ortiz Avenue swale is not a V-notch, but a half-V. The closed side of the swale prevents the water from running onto Ortiz Avenue. The open side of swale abuts Petitioners' property, so, if the swale's capacity is exceeded, stormwater will be released onto Petitioners' land. Second, perimeter berming along the east side of the 10.9- and 21.4- acre parcels will impede flow off the part of Petitioners' property located to the east of the 65 acres. A swale between the proposed halfway house and the Juvenile Detention Center will receive runoff from a small portion of Petitioners' property to the east and mostly north of the 65 acres. But there is no indication how much runoff from Petitioners' property can be so accommodated, how much runoff is impeded by the existing berm along the east side of the Juvenile Detention Center and Price Halfway House, and how much runoff will be impeded by the addition of new berms along the east side of the proposed halfway house and bootcamp. Basis of Review 6.8 requires that swales and dikes allow the passage of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b), Florida Administrative Code, requires that an applicant provide reasonable assurances that a surface water management system will not cause adverse water quality or quantity impacts on adjacent lands. Neither SFWMD nor DMS obtained topographical information for Petitioners' property, as required by the Basis of Review. Rough estimates suggest that the proposed project may require Petitioners' property to retain considerably more stormwater from the design storm event of 25 years, three days. DMS and SFWMD have thus failed to provide reasonable assurance that the proposed system would not have an adverse impact on Petitioners' upstream and downstream land.
Recommendation It is hereby RECOMMENDED that the South Florida Water Management District enter a final order denying the application of the Department of Management Services for all permits for the operation and construction and operation of surface water management systems on the 65-acre parcel. ENTERED on June 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 19, 1995. APPENDIX Rulings on Proposed Findings of Petitioners 1-18: adopted or adopted in substance. 19: rejected as subordinate. 20-21: adopted or adopted in substance. 22-24 (first sentence): rejected as irrelevant. 24 (remainder)-46: adopted or adopted in substance. 47-53: rejected as subordinate. 54-64 (first sentence): adopted or adopted in substance. 64 (second sentence)-66: rejected as subordinate. Rulings on Proposed Findings of Respondent SFWMD 1-10: adopted or adopted in substance. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as unnecessary. 13: adopted or adopted in substance. 14-15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence. 17 (except for last sentence): adopted or adopted in substance. 17 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 18-32 (first sentence): rejected as unnecessary. 32 (remainder): rejected as unsupported by the appropriate weight of the evidence. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence, except that the proposed ponds are wet detention. 35 (first sentence): adopted or adopted in substance. 35 (remainder): rejected as unsupported by the appropriate weight of the evidence. 36-45: rejected as unnecessary. 46-47: rejected as unsupported by the appropriate weight of the evidence. 48-50 (second sentence): adopted or adopted in substance. 50 (remainder): rejected as unsupported by the appropriate weight of the evidence. 51-52, 55-57 (first sentence), and 58: adopted or adopted in substance, although insufficient water quality treatment. 53: adopted or adopted in substance. 54: rejected as unsupported by the appropriate weight of the evidence. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance, except after "therefore." None of remainder logically follows from what is said in 1.6. 61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as subordinate, unsupported by the appropriate weight of the evidence, and irrelevant. 65: rejected as subordinate. 66: rejected as irrelevant. The burden is on the applicant and SFWMD, if it wishes to issue the permits, to provide reasonable assurances as to the adverse impact of the drainage systems. 67-68: rejected as subordinate. 69: rejected as unsupported by the appropriate weight of the evidence. 70: rejected as unsupported by the appropriate weight of the evidence. 71: rejected as repetitious. 72: rejected as irrelevant, except for past report of flooding, which is rejected as repetitious. 73: rejected as repetitious. 74: rejected as irrelevant and subordinate. 75 (first three sentences): adopted or adopted in substance. 75 (remainder): rejected as unsupported by the appropriate weight of the evidence. 1 and 2: rejected as irrelevant insofar as the same result is reached with or without the permit modifications. Rulings on Proposed Findings of Respondent DMS 1-4: adopted or adopted in substance. 5: rejected as subordinate. 6: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 8: rejected as subordinate. 9: adopted or adopted in substance, except that the excessive discharge was not "caused" by the minimum-sized orifice, only defended on that basis. 10: adopted or adopted in substance. 11-12: rejected as subordinate. 13: rejected as irrelevant. 14: adopted or adopted in substance. 15: adopted or adopted in substance, except for implication that no flooding problems existed. 16: rejected as recitation of evidence. 17: rejected as subordinate. 18: rejected as irrelevant. 19: adopted or adopted in substance, to the extent that separateness of systems is relevant. 20: rejected as subordinate. 21: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23-30: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence, based on the present record. 33: rejected as unsupported by the appropriate weight of the evidence and relevance. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416 Russell P. Schropp Harold N. Hume, Jr. Henderson Franklin P.O. Box 280 Ft. Myers, Fl 33902 O. Earl Black, Jr. Stephen S. Mathues Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, FL 32399-0950 Vincent J. Chen Toni M. Leidy South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401
The Issue The central issue in this case is whether the application for a surface water management permit (permit no. 4-009-0077AM) filed by the Respondent, David A. Smith (Applicant), should be approved.
Findings Of Fact Based upon the prehearing stipulations of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Applicant is the owner of the subject property. The Applicant filed an application for a permit to construct a stormwater management system which was proposed to serve a residential and golf course development to be known as Sabal Hammocks. The site of the proposed project is approximately 720 acres in size and is located in township 24 south, sections 28, 29, 30, 32, 33, and 34, range 35 east, Brevard County, Florida. The entire project site for the Sabal Hammocks development is located within the boundaries of the St. Johns River Water Management District. To the west of the project site is an 140 acre public park that treats its own stormwater and releases pre-treated stormwater during some storm events into the canals on the Sabal Hammocks site. The Applicant's site is located adjacent to Lake Poinsett and prior uses of the land have included cattle grazing and the cultivation of rye and oats. The Applicant filed his application for the stormwater management permit (permit NO. 4-009-0077AM) on December 22, 1989. That application was deemed complete by the District on June 19, 1990. The District issued a notice of its intended action to approve the permit application on June 28, 1990. Save timely filed a petition challenging the proposed action. By law the District is the appropriate agency charged with the responsibility of reviewing applications for stormwater management permits within the subject area. Save is an association of individual persons and representatives from groups who utilize the waters of Lake Poinsett and its surrounding areas for recreational and business purposes. The receiving waters for stormwater discharge from the proposed Sabal Hammocks development will be Lake Poinsett. That water body is classified as Class III waters. Currently, a dike system exists along the southern boundary of the subject property. That dike system separates the internal grazing lands of the parcel from the lower marsh and flooded areas external to the dike. A series of ditches cross the parcel to drain the interior areas. Two agricultural discharge pumps are currently in use at the site. The operation of those pumps has been authorized pursuant to a consent order approved by the District's governing board on December 13, 1990. The dike system on the subject site has been in place since the 1970s. The original construction specifications of the dike are unknown. Sometime in the 1980s, several openings or breaches were cut in the dike system. Those breaches were opened pursuant to permits issued by the District and the Department of Environmental Regulation (DER) . The breaches were cut to a sufficient width and depth to allow boats to navigate through to interior areas of the subject property during those times when the water levels outside the dike would allow such entrance. The breaches were not cut to ground level and the original dike remained intact and uncompromised by the breaches. That is, the dike has not failed to impede water movement and the integrity of the dike was not weakened by the breaches. The original outline, dimension of the dike, remained visible despite the breaches. In 1986, the Applicant requested permission from the District staff in order to close or restore the dike breaches. At that time, the District staff advised David Smith that a permit would not be required to restore the dike since such improvements would be considered a maintenance exemption. Subsequently, and in reliance upon the representations made by the District's director,, the Applicant closed the breaches and restored the continuity of the dike system of the subject property. The Applicant's work to close the breaches was performed in an open manner, would have been visible to persons using the adjacent marsh or water areas for recreational purposes, and was completed at least one year prior to the application being filed in this case. Neither the District nor DER has asserted that the work to complete the original dike in the 1970s, nor the breaches completed in the 1980s, nor the restoration of the breaches in 1986 was performed in violation of law. Further, the District had knowledge of the subject activities. Save contends that the restoration of the dike system was contrary to law and that it was not afforded a point of entry to contest the closure of the breaches. Additionally, Save infers that the original construction of the dike system in the early 1970s was without authorization from authorities. Save's contention is that the prior condition of the property, ie. the parcel with breached openings, must be considered the correct pre- development condition of the land. The District, however, considered the pre- development condition of the parcel to be that of a diked impoundment separated from Lake Poinsett. The same assumption was made regarding the pumping of water from the area enclosed by the dike via an existing 36 inch pump which discharges to Bass Lake (and then to Lake Poinsett) and an existing 12 inch pump that discharges into the marsh areas adjacent to the property (between it and Lake Poinsett). The District's consideration of the site and the application at issue was based upon the actual condition of the land as it existed at the time this application was filed. The pre-development peak rate and volume of discharge from the site was calculated based upon the maximum discharge capacity of the two existing pumps (described above). Accordingly, the maximum pre-development rate of discharge from the two existing pumps is in the range of 90-107 cubic feet per second. The pre-development volume of discharge, based upon actual pump records, was calculated as 710 acre-feet for a 25 year, 96 hour storm event. The total areas encompassed by the Applicant's proposal are the 720 acre site where the golf course and residential homes will be located together with 140 acres from an adjacent public park. The runoff entering the stormwater system from that public park will have already been treated in its own stormwater management system. The Applicant's proposed stormwater system will consist of a series of lakes and interconnected swales. This wet detention system will capture the runoff and direct its flow through the series of swales and lakes via culverts. The waters will move laterally from the northwestern portion of the parcel to she southeastern end of the site. From the final collecting pond, she waters will be pumped to Bass Lake and ultimately flow to Lake Poinsett. Wet detention systems generally provide greater pollutant treatment efficiencies than other types of stormwater treatment systems. The maintenance associated with these systems is also considered less intensive than other types of treatment systems. The wet detention system proposed for Sabal Hammocks accomplishes three objectives related to the flow of stormwater. The first objective, the collection of the. stormwater, requires the creation of several lakes or pools into which water is directed and accumulates. The size and dimension of the lakes will allow the volume of accumulated water to be sufficient to allow stormwater treatment. The capacity of the lakes will also provide for a sufficient volume to give adequate flood protection during rainfall events and storms. The second objective, the treatment of the stormwater, requires the creation of a littoral zone within the system. The littoral zone, an area of rooted aquatic plants within the lakes or ponds, provide for the natural removal of nutrients flowing into the system. The plants serve as a filtering system whereby some nutrients are processed. The proposed littoral zone in this project constitutes approximately 37 percent of the detention system surface area and therefore exceeds District size requirements. The depth of the treatment volume for the proposed system will not exceed 18 inches. A third objective accomplished by the creation of the series of lakes is the provision for an area where pollutants flowing into the detention system may settle and through sedimentation be removed from the water moving through the system. The average residence time estimated for runoff entering the Sabal Hammocks detention system is 48 days. The permanent pool volume will, therefore, be sufficient to assure the proposed project exceeds the District's requirements related to residence time. The design and volume of the Sabal Hammocks system will also exceed the District's requirements related to the dynamic pool volumes. In this case the Sabal Hammocks system will provide for approximately 65 acre-feet of runoff. Thus, the proposed system will adequately control and detain the first 1 inch of runoff from the site. The length to width ratio for the proposed lakes, 18:1, exceeds the District's minimum criteria (2:1). The final lake or pond into which the stormwater will flow will be 17 acres and will have 15 acres of planted wetland vegetation. Before waters will be released into Bass Lake, the site's runoff will pass through 3100 linear feet of this final lake before being discharged. The proposed project will eliminate the two agricultural pumps and replace them with one pump station. That station will contain four pumps with a total pumping capacity of 96 cubic feet per second. Under anticipated peak times, the rate of discharge from the proposed single station is estimated to be less than the calculated peak pre-development rate of discharge (90-107 c.f.s.). The estimated peak volume of discharge will also be lower than the pre-development discharge volumes for the comparable storm events. The proposed pump station is designed to be operated on electrical power but will have a backup diesel generator to serve in the event of the interruption of electrical service. Additionally, the pumps within the station will be controlled by a switching device that will activate the pump(s) only at designated times. It is unlikely that all four pumps will activate during normal rainfall events. The Applicant intends to relinquish maintenance responsibilities for the stormwater system including the pump station to Brevard County, Florida. Finished floor elevations for all residential structures to be built within the Sabal Hammocks development will be at a minimum of 18.2 mean sea level. This level is above that for a 100 year flood. The floor elevations will be at least one foot above the 100 year flood elevation even in the event of the dike or pump failure or both. Finished road elevations for the project will be set at 17.5 feet mean sea level. This elevation meets or exceeds the County's requirements regarding the construction of roadways. It is estimated that the Sabal Hammocks system will retain at least 26 percent of all storm events on site. If the lake system is utilized to irrigate the golf course the proposed system could retain 45 percent of all storm events on site. Of the 31.27 acres of wetlands within the proposed site, only 4.73 acres of wetlands will be disturbed by the construction of this project. Some of the wetlands are isolated and presently provide minimal benefits to off-site aquatic and wetland dependent species. No threatened or endangered species are currently utilizing the isolated wetlands. The areas of wetlands which are productive and which will be disturbed by the development will be replaced by new wetlands to be created adjacent to their current location at a lower elevation. The new wetlands should provide improved wetland function since those areas will be planted with a greater diversity of wetland plant species. Additionally, other wetland areas will be enhanced by the removal of invader species and increased hydroperiod in the area. The integrated pesticide management plan for the proposed project will be sufficient with the additional condition chat use of Orthene, Subdue, and Tersan LSR will be authorized when approved insecticides or fungicides have not been effective. In this case, the estimates regarding the water quality for the proposed project were based upon data from studies of multifamily residential projects. Data from single family/ golf course developments was not available. Therefore, based upon the data used, the projected runoff concentrations for this project should over estimate pollutants and are more challenging to the treatment system than what is reasonably expected to occur. In this regard, the overall treatment efficiencies are estimated to be good for all of the parameters of concern with the exception of nitrogen. The projected increase in nitrogen, however, will not adversely impact the receiving water body. The projected average concentration for each constituent which may be discharged is less than the state standard with the exceptions of cadmium and zinc. In this regard, the District's proposed conditions (set forth in the District's exhibits 4 and 9) adequately offset the potential for a violation of state water quality standards. More specifically, the use of copper-based algaecides in the stormwater management system should be prohibited; the use of galvanized metal culverts in the stormwater management system, or as driveway culverts, should be prohibited; and the use of organic fertilizers or soil amendments derived from municipal sludge on the golf course should be prohibited. Additionally, a water quality monitoring plan should be implemented by the Applicant. The monitoring plan mandates the collection of water samples from areas in order to adequately monitor the overall effectiveness of the treatment facility. The source of cadmium is not be expected to be as great as projected since the most common source for such discharge is automobiles. It is unlikely that the golf course use will generate the volume of discharge associated with automobile use that the multifamily data presumed. The projected quality of the discharges from this project should be similar to the ambient water quality in Lake Poinsett. In fact, the post- development pollutant loading rates should be better than the pre-development pollutant loading rates. The discharge from the proposed Sabal Hammocks project will not cause or contribute to a violation of state water quality standards in Lake Poinsett nor will the groundwater discharges violate applicable state groundwater quality standards. The floodways and floodplains, and the levels of flood flows or velocities of adjacent water courses will not be altered by the proposed project so as to adversely impact the off- site storage and conveyance capabilities of the water resource. The proposed project will not result in the flow of adjacent water courses to be decreased to cause adverse impacts. The proposed project will not cause hydrologically-related environmental functions to be adversely impacted The proposed project will not endanger life, health, or property. The proposed project will not adversely affect natural resources, fish and wildlife. The proposed project is consistent with the overall objectives of the District.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the governing board of the St. Johns River Water Management District enter a final order approving the application for permit number 4-009-0077AM with the conditions outlined within the District's exhibits numbered 4, 8, and 9 and as previously stated in the notice of intent. DONE and ENTERED this 2 day of July, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2 day of July, 1991. APPENDIX TO CASE NO. 90-5247 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant. Paragraphs 5 and 6 are accepted. The first sentence of paragraph 7 is accepted the remainder is rejected as irrelevant. Paragraph 8 is accepted. Paragraphs 9 through 11 are accepted. Paragraph 12 is rejected as irrelevant. 8 Paragraphs 13 through 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 25 are accepted. The last two sentences of paragraph 26 are accepted, the remainder is rejected as irrelevant. Paragraph 27 is accepted. Paragraph 28 is rejected as comment, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraph 29 is accepted. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as argumentative. Paragraphs 32 and 33 are accepted. With regard to paragraph 34 it is accepted that compensating storage was not required. Otherwise, unnecessary, irrelevant, or comment. With regard to paragraph 35, it is accepted the proposed system meets the first 1 inch of runoff requirement otherwise, unnecessary or irrelevant or comment. Paragraph 36 is accepted. Paragraphs 37 through 41 are rejected as irrelevant, argumentative or comment. Paragraphs 42 and 43 are accepted. With the deletion of the last sentence which is irrelevant, paragraph 44 is accepted. Paragraphs 44 through 49 are accepted. The second sentence of paragraph 50 is accepted, the remainder of the paragraph is rejected as irrelevant or contrary to the weight of the evidence. The first sentence of paragraph 51 is accepted, the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 52 through 56 are rejected as irrelevant, comment, or recitation of testimony. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraphs 59 and 60 are rejected as irrelevant, comment, or argumentative. Paragraphs 61 and 62 are accepted. The first sentence of Paragraph 63 is accepted. The remainder of the Paragraph is rejected as contrary to the weight of the evidence. The proposed project will benefit the wetland areas in an unquanitifiable measure due to the enhancements to prior wetlands and the creation of new wetlands. The first sentence of paragraph 64 is accepted. The remainder is rejected as contrary to the weight of the evidence. Paragraph 65 is accepted. Paragraph 66 is rejected as argument or irrelevant. Paragraph 67 is accepted. Paragraphs 68 and 69 are accepted. Paragraph 70 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 71 through 73 are accepted. Paragraph 74 is rejected as irrelevant or unnecessary. Paragraphs 75 through 78 are rejected as argument, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraphs 79 through 82 are accepted. Paragraph 83 is rejected as irrelevant. Paragraphs 84 and 85 are rejected as argument or comment. It is accepted that the Corp and DER are aware of the restoration of the dike and that neither has asserted such work was performed contrary to law. Paragraph 86 is rejected as comment on the evidence or irrelevant. It is accepted that the District advised Applicant that he could restore the dike system and that the District was apprised of the completion of that work. With regard to paragraph 87, it is accepted that the restoration of the dike entailed filling the breaches to conform to the dike's original design; otherwise, rejected as irrelevant. Paragraphs 88 and 89 and the first sentence of Paragraph 90 are accepted. The remainder of paragraph 90 and Paragraphs 91 through 93 are rejected as irrelevant, argument, or comment. Paragraph 94 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 78 is accepted. Paragraph 79 is rejected as argumentative. Paragraph 80 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SAVE: None submitted. COPIES FURNISHED: Mary D. Hansen 1600 S. Clyde Morris Boulevard Suite 300 Daytona Beach, Florida 32119 Brain D.E. Canter HABEN, CULPEPPER, DUNBAR & FRENCH, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Wayne Flowers Jennifer Burdick St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178
The Issue Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?
Findings Of Fact More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.) Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters. Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each 24 inches in diameter, in their stead, install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface, Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD. T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.
Recommendation It is, accordingly, RECOMMENDED: That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue. DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1992. APPENDIX Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material. With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law. Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to subordinate matters. Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue. With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed. With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding. With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12. With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts. Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard. With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill. The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material. With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD. With respect to the applicants' proposed finding of fact No. 9, the OHW is 45.7 feet NGVD. With respect to the applicants' proposed finding of fact No. 11, testimony so implied. With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy. The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters. With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm. With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill. With respect to DER's proposed finding of fact No. 3, backflows begin at 45.3 feet NGVD. With respect to DER's proposed finding of fact No. 4, not all fill would be removed. With respect to DER's proposed finding of fact No. 5, testimony so implied. With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm. DER's proposed finding of fact No. 7 is really a conclusion of law. With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions. DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material. DER's proposed finding of fact No. 13 is immaterial to the merits. COPIES FURNISHED: John A. Barley P.O. Box 10166 Tallahassee, FL 32302 Donna H. Stinson Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, FL 32301 Candi E. Culbreath Patricia Comer 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carlos Alvarez c/o Hopping, Boyd, Green & Sams 123 South Calhoun Street Tallahassee, FL 32301 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
