Findings Of Fact Oliver DeWitt and Donald F. Richters, employees of the Southwest Florida Water Management District, were called, testified, and identified Composite Exhibit 1, the staff record of this application. Frank applied for a permit after the fact to construct a bulkhead within the mean annual floodplain of Lake Eustis. The investigation clearly revealed that fill had been placed behind a bulkhead built in Lake Eustis. Referring to the drawing marked "A" attached to the application found in Exhibit 1, the area marked in blue by the witnesses is the area filled and bulkheaded by the applicant. The applicant did not appear or present evidence to support its application.
Recommendation The Hearing Officer having considered the law and the facts would recommend denial of the application. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFMD Irene T. Frank Route 2, Box 55 Tavares, Florida 32778
The Issue Whether Michael Chbat's 2008 application for a Wetland Resource Permit (WRP) to construct a culvert extension across his property in Walton County, Florida, should be approved?
Findings Of Fact La Grange Bayou Estates La Grange Bayou Estates is a residential subdivision in Freeport, Walton County, Florida. The subdivision lies to the north of the shoreline of Choctawhatchee Bay. It can be viewed as divided roughly in half between bayfront lots south of an east-west road that transects the subdivision and lots that are north of the road. The subdivision is platted and the plat is in the public records of Walton County. Filed with the Clerk of the Circuit Court in and for Walton County, Florida, on September 15, 1982, the plat ("the 1982 Plat") shows 29 residential lots in the subdivision as of that date. See Petitioner's Ex. 6. Lots 1 through 16, according to the 1982 Plat, are the bayfront lots, south of a 40-foot wide road designated as a private road in the plat. That road is now known as Alden Lane. Wetlands over which the Department has jurisdiction ("jurisdictional wetlands") comprise much of the southern portion of bayfront lots and the drainage easement. Among the bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot 8 which belongs to Mr. Sheehey. A 50-foot easement lies between Lot 9 and Lot 8 and is described more fully below. The presence of jurisdictional wetlands on Mr. Chbat's lot over which he hopes to install the culvert extension requires that he obtain a WRP. To the north of Alden Lane are lots numbered by the 1982 Plat as 17 through 29. The lots are served by Alden Lane and, in what is roughly the northeast quadrant of the subdivision, by two other roads. One of the roads is shown on the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial photograph introduced into evidence by Chbat designates the road "unnamed." See Chbat Ex. 5. The other is designated as a "graded county road," on the 1982 Plat. By 2006, it had come to be known as Beatrice Point Road. Id. Beatrice Point Road transects a pond that runs roughly 340 feet (excluding about 30 feet of roadway) in a northeasterly direction from Alden Lane to the southern edge of an area north of the subdivision shown on the 1982 Plat to be un-platted. The pond is most likely the result of a "borrow pit" dug in order to obtain fill for the construction of the roads when the subdivision was initially developed. The southern boundary of the pond lies along approximately 140 feet of Alden Lane's northern edge. The pond is across the street from Lots 9, 10 and 11 of the subdivision. The pond is also not far northeast of the 50-foot easement (the "Drainage Easement") between Lots 9 and 8. The Drainage Easement The Drainage Easement is just to the west of Lot 9. It is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id. The 50-foot wide Drainage Easement runs the length of the western boundary of Lot 9 and the length of the eastern boundary of Lot 8. The northeast corner of the Drainage Easement is approximately 30 feet from the southwest corner of the pond separated from the pond by the roadway of Alden Lane. The eastern boundary of the Drainage Easement is 226.37 feet in length, or if taken to the middle of Alden Lane, 246.3 feet. The western boundary is 206.13 feet long or if taken to the middle of the road, 226.65 feet. The purpose of the Drainage Easement, as is evident from its denomination in this recommended order, is drainage. As Mr. Street definitively put it at hearing, it is "now and always has been intended to drain stormwater to the [B]ay." Tr. Vol. III at 179. Mr. Street's opinion of the function of the Drainage Easement is supported by drawings submitted by Mr. Chbat as part of the WRP application. The drawings show that the Drainage Easement's function is facilitated by three culverts north of the Easement (referred to during the hearing as "pipes") each of which is intended to direct stormwater at its point of discharge toward the Drainage Easement. See Chbat Ex. 1. One of the culverts ("the Drainage Ditch Culvert") serves a drainage ditch that is to the north of the Easement and Alden Lane. According to the drawings, the drainage ditch lies on the other side of the "un-named road" from the pond, that is, to the west of the pond, and is some 40-to-50 feet north of the Drainage Easement. The Drainage Ditch Culvert extends from the ditch to the southern half of Alden Lane from where it appears from the application's drawings that stormwater would be conveyed to the western side of the Drainage Easement along it's border with Lot 8 and on toward the Bay. In fact, it is a functioning culvert that "conveys water from a swale on the side of the road into the [D]rainage [E]asement." Tr. 64. Once in the Drainage Easement, according to the drawings, the water should flow into the Bay out of a "cut," id., that is labeled on the drawings as an "existing trench." See Chbat Ex. 1. The trench, however, has been filled in with sand by tidal activity or sediment deposited by stormwater or both. The trench has not been maintained, and it no longer exists. The other two culverts (the "Pond Culverts") lie east of the Drainage Ditch Culvert. They catch overflow from the pond caused by stormwater and convey it under and through Alden Lane toward the Drainage Easement. The westernmost Pond Culvert (the "Western Pond Culvert") appears to terminate in Alden Lane near its southern edge just north of the Easement. At the time of hearing, however, it was not functioning properly. "[I]t is full of sand and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west is clogged and it is not functioning." Tr. Vol. I at 64. It is also at an elevation that would keep it from serving drainage purposes in all but the most severe storm events. See Chbat Ex. 9 at 22. The other Pond Culvert, (the "Eastern Pond Culvert") terminates in the northwest corner of Lot 9 at the border between Lot 9 and the Drainage Easement about 10 feet southeast of the terminus of the Western Pond Culvert. The Eastern Pond Culvert is the culvert with which the Amended Permit is concerned, that is, it is the culvert to be extended by the permit. Calling it a "pipe," Mr. Street offered the following about the assistance the Eastern Pond Culvert offers in conveying stormwater into the Drainage Easement and down to the Bay: There is currently a pipe that discharges into that easement. There . . . was an attempt to place the water from the . . . pond into the easement. And the natural flow of water on this entire property from the road to the [B]ay is north to south. At some point, at least 2004, that drainage easement contained a conveyance at its southern end that would safely discharge stormwater to the [B]ay. Tr. Vol. III at 179-80. Petitioner Sheehey and Lot 8 Thomas Sheehey is the owner of Lot 8, where he has a residence in which he makes his home. He has lived in the residence approximately five years. During that time, Mr. Sheehey has fished in the Bay and enjoyed the use of his kayak and his waverunner on the Bay. He also enjoys "sitting down having a cup of coffee and looking at it," tr. vol. III at 151, as well as watching his neighbors fish. The recreational uses to which he puts the Bay is the reason he chose to purchase a bayfront lot in La Grange Bayou Estates. Over the period of time that he has resided on Lot 8, Mr. Sheehey has observed the effects of rain events on his lot and well as lots close to Lot 8. He has also taken pictures of his property and the near-by lots. Among the photographs were four taken after rain events or "after a wet period," tr. vol. III at 88, at some point in the last four years. The four photos were introduced as a composite exhibit, Petitioner's Ex. 2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey could not specify when the pictures were taken in the past four years other than that if a picture had a certain dock in it, then it was taken after January of 2009. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot looking toward the Bay. It shows an area of the lot under water separated from the Bay by a ridge. Petitioner's Ex. 2B is a picture taken from Lot 13 looking west across Lots 12, 11, 10, 9 "down through 8." Tr. Vol. III at 86. Much of what is photographed is among trees and vegetation emerging from water standing above the surface of the soil. Petitioner's Ex. 2C is a picture taken from Alden Lane looking south across Mr. Chbat's property. It shows a wide swath of water that extends from the road across most of the property to the Bay. The water is either in a swale or constitutes overflow outside the swale. The most recent of the four is Petitioner's Ex. 2D, which shows the dock referred to by Mr. Sheehey that was built in early 2009. It is a picture taken from Lot number 13 toward the west through Lots 12, 11, 10, 9. Like the others, it shows vegetation standing in water to the north of the Bay. Taken together, the four pictures in Petitioner's Exhibit 2 demonstrate that significant portions of the lots depicted are under water following sufficient amounts of recent rain. The four photographs that comprise Petitioner's Exhibit 2 are not the only photos taken by Mr. Sheehey that were introduced into evidence. Three other photographs of Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were admitted following testimony about them from a long-time observer of the flow of water from Alden Lane to the Bay. A Long-time Observer Thomas Eugene Cummins had lived in La Grange Estates "[t]wo months shy of 20 years," tr. vol. III at 7, at the time of his testimony. His house was the fourth to be constructed in the subdivision. Over the two decades of his residence, the pond between Alden Lane and the property north of the subdivision has been in existence. Consistent with the drawings submitted to DEP as part of the application, when asked where the pond overflows today, Mr. Cummins answered "it drains under Alden Lane on to Mr. Chbat's lot." Tr. Vol. III at 8. Asked by Mr. Chesser at hearing, "When the water comes out of the pond, is it possible to know where it spreads?"1/ Mr. Cummins testified: On really heavy rains, I have watched the normal color of the pond change from its dark blackish gray color into the reddish color that the clay has washed down into it, flow under Alden Lane and on to Mr. Chbat's lot, and then proceed west through the wetland on lots eight, seven, six, and my five, and turn reddish color even in my lot. Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red color" of the stormwater: red clay introduced to La Grange Estates by the County half a decade earlier. Mr. Cummins testified: Beatrice Point Road, which is the road that runs over the pond, about five years ago the county did some repair on the road and actually put red clay in certain spots to even it out. Tr. Vol. III at 9. Prior to the county's work on the road referred-to by Mr. Cummins, there had been no red clay in the neighborhood. Alden Way, for example, has no red clay. It is a road composed of shell. The only red clay in the subdivision is that which is on Beatrice Point Road. The water that runs onto Mr. Cummins' lot following a heavy rain rises to as much as 12 inches.2/ The water rises as high as it does because it is held back by a naturally-occurring land formation between the Bay and Mr. Cummins property. This geo-formation was referred-to at hearing as the ridge line or the ridge. The Ridge The Ridge was described by Mr. Cummins as a vegetated mass of earth that most of the time, even in heavy rains, sits above the water that collects on the bayfront lots of La Grange Estates. The Ridge prevents a substantial amount of stormwater runoff from entering the Bay from the wetlands on the southern portion of the subdivision's bayfront lots. For that reason, the ridge is called "our upland,3/" tr. vol. III at 13, according to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in width "anywhere between 10 feet . . . up toward Mr. Chbat's lot, down to [Mr. Cummins'] lot where its around 30 or 40 feet [wide.]" Id. (It may extend, in fact, across all of the bayfront lots.) The ridge meanders not far from the shoreline. Id. In some places it is as narrow as five feet. The height of the ridge varies as well from as low as one foot to as high as two and half feet. Mr. Street also testified about the Ridge, referring to it in his testimony as a "ridge line": Now, there is a ridge line, and there's been a lot of testimony about this ridge line, that it exists across all of the lots. My testimony was, essentially, related to the review that I did, which was primarily associated with lots eight and nine, and the drainage easement between them. And from what I can tell, the elevation of that ridge line is give or take three. Elevation three, not a height of three. An elevation of three. It could be lower, and perhaps, is higher. And its subject to the vagaries of a number of factors, flow of stormwater, wave action, tidal influence, and the like. And these accretions and depositions of sand over time change that ridge line. And sometimes, it opens up. And sometimes it may not have a natural opening, depending on where you are along that entire stretch of beach. * * * [T]o the extent there is an opening in that ridge line, water will flow naturally to the bay. Tr. Vol. III at 180-181. An "east west flow of water," tr. vol. III at 181, along the bayfront lots, that is, a flow of water either in an easterly direction or a westerly one is contrary to the flow from Alden Lane north of the lots to the Bay south of the lots. Whether flowing east or west, the water in the southern portions of the bayfront lots is "controlled by the ridge line." Id. In other words, stormwater that flows from north to south across the bayfront lots, including Mr. Chbat's and the Drainage Easement, is going to collect and begin to flow from east to west or west to east at some point north of the Ridge before it drains into the Bay. The only exception to east-west flow, as made clear by Mr. Street, is when and if there is an opening in the Ridge that allows the water otherwise held back by the Ridge to flow southward into the Bay. The east-west flow of the water along the Ridge was described at hearing as "unnatural." Id. In fact, it is not un-natural. The Ridge is the cause of the east-west flow and, as Mr. Street testified, the Ridge is the result of natural processes such as tidal influence, wave action, accretion and deposition of sand.4/ The Ridge is shown in Petitioner's Exhibit 7A,5/ another photograph taken by Mr. Sheehey. The ridge as shown in the picture is well vegetated and above water to its north and higher than the Bay to its south. It is quite clear that if there is no opening in the ridge to the Bay, stormwater north of the ridge is forced to flow in east-west directions and is prevented from flowing into the Bay. Petitioners' Exhibit 7B is a photograph of the southern terminus of a swale (see paragraphs 40 - 49, below) on Mr. Chbat's property. It shows the swale cut through the Ridge. Water, however, does not appear to be running from the end of the swale into the bay. It appears that the end of the swale is a few feet from the Bay separated by a narrow sandy area on the shore. Nonetheless, the photograph shows that there is potential for stormwater to flow from the swale when the swale has more water in it. Petitioner's Exhibit 7C is a picture of the pond6/ across the street from Mr. Chbat's Lot 9. Mr. Chbat and Lot 9 Michael Chbat is the owner of Lot 9. He purchased the lot "[t]o build a house on it." Tr. Vol. I at 22. Because he has family close by (in Fort Walton Beach), Mr. Chbat expects to use a house built on the lot for weekend visits. His ultimate aspiration is to live in a house on Lot 9 after he retires from his position as a construction engineer with the City of Tallahassee. At hearing, Mr. Chbat described Lot 9 on the day he bought it: "the lot was overgrown. It drained from north to south. It had water standing on it. And it had a pipe [the Eastern Pond Culvert] on the northwest corner discharging." Tr. Vol. I at 23. He also described the state of the lot at the time of hearing. The Eastern Pond Culvert on the northwest corner was still there. The lot had been cleared to some extent to rid it of invasive species. Overgrown vegetation was trimmed or cleared to make room for a driveway permitted by the Department and "a parking pad in the front area of it, as well as an access pad in the uplands." Id. A dock had also been constructed from the property into the Bay. The most significant difference between the lot at the time of purchase and the lot at the time of hearing for purposes of this proceeding is that the lot now has a swale (the Swale) that runs from the point of discharge of the Eastern Pond Culvert "all of the way to the bay area." Id. The Swale The Swale was put in sometime after March 20, 2007, as the result of a Settlement Agreement fully executed on that date "By and Between Michael Chbat and Thomas L. Sheehey." Petitioner's Ex. 10. The Settlement Agreement followed events that commenced in 2004 when Mr. Chbat filed an application (the "2004 Application") with DEP for a WRP primarily to construct a house and a boardwalk leading from the house on Lot 9 to a dock in the Bay. The 2004 Application also proposed the extension of the Eastern Pond Culvert with a "pipe" along the western boundary of Chbat's property in a manner substantially similar to the culvert extension allowed by the Amended Permit that is the subject of this proceeding. On October 28, 2005, DEP proposed that the 2004 Application be granted. The permit (the "Proposed Original Permit") was assigned No. 66-0235320-001-DF. See Petitioner's Ex. 10, at 2. The Proposed Original Permit was challenged by Mr. Sheehey when he "filed a Petition for Administrative Hearing contesting certain action authorized under the [Proposed Original] Permit . . . specifically the relocation of a drainage pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the Settlement Agreement that they had "determined that it is in their best interests to settle this matter amicably pursuant to the terms hereafter". Id. Among the terms is that Chbat would file an Amended Application. See id. The agreed-to amendment to the 2004 Application was attached to the Settlement Agreement as Exhibit "A," a drawing of a "Drainage Swale Plan," produced by Genesis Group for Mr. Chbat. The drawing depicts a swale that runs from the discharge point of the Eastern Pond Culvert nearly the full length of the western boundary of Lot 9 to the Bay. See Exhibit "A" to Petitioner's Ex. 10. The Swale was designed to take the place of the 2004 Application's proposal for a "pipe"7/ attached to the point of the discharge from the Eastern Pond Culvert. The Settlement Agreement received the support of DEP because the Department believed that a swale would assist in improving the quality of the stormwater discharged to the Bay over the untreated discharge from the end of the "pipe." Pursuant to the terms of the Settlement Agreement the 2004 Application was amended. The Department amended the Proposed Original Permit accordingly and final agency action was taken with the issuance of a permit to Mr. Chbat (the "Final Original Permit") found in DEP Permit File No. 66-0235320-001- DF. Installation of the Swale The Swale was installed, but it did not work as intended. The result of the Swale's installation was more water on the lot rather than less. Mr. Chbat described the after-effects of the Swale: "it started bringing more water to the lot . . .". Tr. Vol. I at 31. The increased amount of water is the result of several factors, one of which is tidal influence: the tide from the Bay pushes water into the Swale. "[A]bout halfway on the swale . . . that water from the bay was meeting the water from the pipe . . .". Id. The water from the Bay tide and the stormwater conveyed by the Swale would meet at "about the middle of the span of the swale." Id. The result was "a lot more water," id., on the lot. Mr. Thomason confirmed Mr. Chbat's assessment that the reason the Swale did not function as effectively as necessary is tidal flow onto Lot 9 from the Bay particularly from high winds. But tidal flow onto Lot 9 and the interruption in the discharge of stormwater through the Swale are not the only problems. There is also a maintenance factor that accompanies tidal flow: sand deposition. Mr. Thomason elaborated: "[D]uring storm events or [just normal] wave action in the bay, sand is brought back up on to . . . the sandy area at the end of [Lot 9] next to the [Bay.]"8/ Tr. Vol. I at 62. The influx of sand onto Lot 9 is not just a problem for adequate functioning of the Swale. The Drainage Easement has "the same problem." Id. Both the Swale and the Drainage Easement are plagued by deposition of sand pushed landward by normal tidal influences and storm events. Maintenance of the Swale and the Drainage Easement, therefore, would assist the drainage of stormwater into the Bay. The tidal influence and maintenance issues that Mr. Chbat encountered with the Swale led him to apply for a different and new permit. That application was filed in 2008. The 2008 Application Mr. Chbat filed a "Joint Application for Works in the Waters of Florida" with DEP on August 1, 2008 (the "2008 Application"). See Chbat Exhibit 1. The work to be approved was similar to the work originally proposed in the 2004 Application in that both applications proposed installation of a "pipe" to be fixed to the discharge point of the Eastern Pond Culvert that would run along the western boundary of Lot 9 toward the Bay. A description of the work is contained in Section 10 of the 2008 Application: "Extension of an existing stormwater pipe within a private lot approximately 150 feet. The slope for the proposed pipe extension will be at minimum so that stormwater will be treated further, and minimizing erosion." Chbat Ex. 1 at 3. After the filing of the 2008 Application, Mr. Chbat learned that Mr. Sheehey objected to the newest Chbat proposal because he believed 150 feet is not lengthy enough to clear the Ridge. See Chbat Exhibit 2. In order to cure the objection, Mr. Chbat proposed a modification to the 2008 Application. He attached a "sealed and signed drawing," id., to a letter dated September 18, 2008, that he submitted to DEP. The drawing shows the extension to be 177 feet, 27 feet more than initially proposed by the 2008 Application. The additional 27 feet was intended to ensure that the discharge would be directly into the Bay in order to "eliminate any possible run-off impact to adjacent properties." Id. The modification was accepted by DEP." See exhibit number 19/ attached to the Amended Permit, Chbat Exhibit 4. There was conflicting evidence in the proceeding on whether the outfall from a culvert extension of 177 feet will be bayward of the Ridge. The issue was put to rest by Mr. Street’s testimony in rebuttal at the hearing. See Tr. Vol. III at 194 and 203-4. His testimony establishes that the point of discharge at the end of the culvert extension will clear the Ridge so that the discharge will be directly into the Bay. The Mound The culvert extension is designed at an elevation and with cover (presumably sod). The extension runs through jurisdictional wetlands and segments them. It does not, however, isolate any portion of the wetlands. The wetlands on Mr. Chbat's property and those to the immediate east and west of it, therefore, will retain their status as jurisdictional wetlands should the extension be installed. With its sod cover, the culvert extension will be a mini-berm (or a "mound" as Mr. Street called it) at an elevation of 17 to 18 inches above grade. Water that pools to its west will no longer be able to flow eastward of the mound (except rarely under the most extreme weather events.) Conversely, water that collects to its east will no longer be able to flow westward of the extension. It would have to be a severe storm event for water to rise above the mound. Mr. Chbat has never seen water rise to 18 inches above grade and Mr. Cummins testified the highest water ever gets on his property is roughly 12 inches. The Department approved the 2008 Application as modified to lengthen the extension to 177 feet and issued the Amended Permit. But an incorrect and critical assumption was made during review of the application that related to the mound. Review of the 2008 Application During his review of the application, Mr. Street, as DEP's stormwater engineer, assumed from the drawings that the Drainage Easement is functional.10/ The assumption was expressed in Mr. Street's testimony in the Department's case-in-chief: Q [D]id you determine whether the pipe, as it would be mounded . . . [the culvert extension covered in sod] . . . would create problems for storm water flow? A I looked at that. There were two conclusions that I drew. One was that the mound would create a higher water elevation on the Chbat property east of the mound, but would not create standing water west of the mound extending into the [Drainage E]asment . . . . Which on the drawings that I reviewed showed an existing trench at the south end of that easement. And it was my opinion that any water that fell west of the mound would exit through the easement. Tr. Vol. II at 92 (emphasis added.) Mr. Street's assumption that water would not pool to the west of the mound in the Drainage Easement and toward Mr. Sheehey's property was contradicted by Mr. Sheehey's stormwater engineer, Mr. Porterfield. THe Porterfield Testimony and Support for It at Hearing The testimony at hearing of Mr. Porterfield, who conducted a site visit, established the opposite of what Mr. Street assumed. The volume of stormwater runoff that pools east of the mound, that is, water on Lot 9, will not be as great as the volume as the water that pools west of the mound. Water that would have flowed onto Lot 9 from the Eastern Pond Culvert will flow directly to the Bay via the culvert extension. The extension will also protect the Drainage Easement and Lot 8 from water that would have flowed from the Eastern Pond Culvert onto that property. But there is a significant difference between stormwater to the west of the extension and to the east. To the extension's west, the Drainage Easement and Lot 8 will have to contend with stormwater from the Drainage Ditch Culvert, the culvert north of Alden Lane that does not convey stormwater from the pond but that like the Pond Culverts has a discharge point directed at the Drainage Easement. How often and to what extent pooling of stormwater will occur west of the mound due to its presence is difficult to determine on the state of this record.11/ No studies or analyses of the likelihood and severity of storm events and the volumes of stormwater runoff that would be produced by them were conducted by any of the stormwater engineers in the case nor were any such analyses done with regard to pooling caused by the presence of the covered culvert extension. The testimony of Mr. Porterfield, however, and other evidence, demonstrates that that additional collection of water west of the mound caused by the mound will occur following heavy rain. Mr. Street was present in the hearing room throughout the entire hearing, including during the presentation of Mr. Sheehey's case. As Mr. Street candidly testified on rebuttal after he had heard all the evidence: I would also maintain that the drainage easement which has signs of a historical usage as a drainage easement with a trench, in fact, that conveys water safely to the bay, that should be re-established and maintained. That’s what it’s there for.” Tr. Vol III at 181 (emphasis added.) Thus, it became clear to Mr. Street after listening to all the evidence in the case that the Drainage Easement has not been properly maintained. The trench that was expected to carry stormwater toward the Bay no longer exists. In short, the testimony of Mr. Street, for all his many strengths as a witness, falls short of supporting the position of the Department and Mr. Chbat. Having never visited the site,12/ he approved the project on the basis of drawings that do not conform to the on-site physical reality. When presented with the evidence at hearing that the Drainage Easement is not functioning, he championed re-establishment and maintenance of the Drainage Easement. Mr. Chbat placed part of the Swale's functionality problem on the tide pushing stormwater northward but his case also recognized the maintenance problem caused by deposition of sand that besets the Swale. Mr. Thomason, moreover, recognized that the Drainage Easement has the same maintenance issue. Mr. Chbat's stormwater engineer testified During storm events or just normal wave action in the bay, sand is brought back up on to. . . the sandy area at the end of [Chbat's] lot next to the water. And so that . . . tends to inhibit the natural flow down the swale . . . we have the same problem on the drainage easement . . . where sand builds up in that discharge. Tr. Vol. I at 62 (emphasis added). From this record, it is clear that neither the Swale nor the Drainage Easement functions properly. Their functional status, moreover, is due in significant part to lack of maintenance. It may be that maintenance ultimately will not solve the problem; maintenance efforts to keep the Swale and Drainage Easement clear of the sand deposited by tidal activity may require too much effort for them to be reasonably required. But that evidence was not produced. Indeed, the record was silent as to any maintenance efforts with regard to the Swale by Mr. Chbat or with regard to the Drainage Easement by the owner of the easement. The record is also silent as to whether DEP voiced any concern about the maintenance issues that beset the Swale. It is clear that concern was not raised by the Department in regard to the Drainage Easement until the rebuttal phase of the hearing, since the assumption was made that the easement was properly maintained. Whatever communication may have occurred with regard to maintenance issues among the parties, the Department issued the Amended Permit.13/ The Permit/Authorization Number for the Amended Permit is 66-235320-002-DF.14/ Issued December 19, 2008, the Amended Permit has an expiration date of December 19, 2013. The expiration date coincides with the construction phase of five years on the face of the Amended Permit. See Chbat Ex. 4. Mr. Sheehey Challenges the Amended Permit On January 6, 2009, Mr. Sheehey, pro se, filed with DEP a petition (the "Petition") seeking a formal administrative hearing with regard to "Amended Wetland Resource Permit 66- 00235320-002-DF." Although the Petition makes reference to the Amended Permit, it seeks in the first instance enforcement of the Settlement Agreement that relates to the Final Original Permit. The Petition states: "Petitioner believes that the Florida Department of Environmental Protection has jurisdiction over this matter and should enforce the March 20, 2007 Settlement Agreement which requires that Permittee act in conformance with Exhibit 'A' of the Agreement [the drawing of the Swale]." In the event that DEP declined to enforce the Settlement Agreement, the Petition sets out disputed issues of material fact that relate to issuance of the Amended Permit. The Petition was referred to DOAH on February 19, 2009. One week before the final hearing, the Department filed the motion in limine that is discussed in the Preliminary Statement of this Recommended Order. The motion was granted to the extent that it sought to preclude Sheehey from introducing evidence that supported enforcement of the Settlement Agreement since the 2008 Application, which, while bearing similarity to the 2004 Application, is nonetheless an independent application that should be approved or denied on its own merits without regard to the 2004 Application, the Proposed Original Permit, the Settlement Agreement or the Final Original Permit. The case proceeded to hearing on the remaining issues raised by the Petition: 1) whether Sheehey has standing to contest approval of the 2008 Application; 2) whether Chbat gave the notice required by Section 373.413, Florida Statutes, and 3) whether Chbat's application meets the criteria in statutes and rules for issuance of the Amended Permit. Standing The findings of fact relevant to Mr. Sheehey's standing are found in paragraph 9, above. Notice Notice of the 2008 Application was published in The Defuniak Springs Herald-Breeze, a newspaper published in Defuniak Springs, Walton County, Florida. The notice was published on October 23, 2008. The evidence presented by Mr. Sheehey concerning lack of legal notice consisted of testimony by Mr. Sheehey at hearing in response to questions from his counsel. See Tr. Vol. III at 134. The testimony does not establish that Mr. Sheehey was a person who had filed a written request for notification of any pending application affecting his particular area. The testimony of Mr. Sheehey, moreover, establishes that he was given oral notice of the application by Mr. O'Donnell within four days of its filing. WRP Permitting Criteria To obtain a WRP, an applicant must satisfy the criteria in Florida Administrative Code Chapter 62-312 and Section 373.414, Florida Statutes. These criteria govern a range of topics including water quality. Water Quality15/ Florida Administrative Code Rule 62-312.080 provides that no permit shall be issued unless the Department has been supplied with reasonable assurances that the proposed work will not violate water quality standards. Water that enters the pond spends some amount of time in the pond (residence time) before flowing out. During residence time, solids drop out of the water so that the quality of the stormwater that flows out of the pond is reasonably expected to be better than the quality of the stormwater runoff when it entered the pond. Vegetation surrounding the pond, furthermore, enhances the quality of the water in the pond, whether the water’s source is runoff or rain falling directly into the pond. The water that flows out of the pond north of Alden Lane is “existing discharge.” Tr. Vol. I at 65. It generally made its way to the Bay prior to the Swale. Some of it makes its way to the Bay via the Swale now; some of it outside the Swale as overflow. The culvert extension will convey that discharge to the Bay if the extension is installed. The quality of the water is not significantly less when it discharges to the Bay via the Swale or otherwise from the Chbat property than when it would enter the culvert extension should it be installed. It is true that the Swale would have provided filtration and additional treatment to the discharge from the Eastern Pond Culvert as does the Chbat property in general. But that does not mean that the quality of the culvert’s discharge is a concern. The Swale may have been an option preferable to the extension of the culvert as far as water quality goes but all parties agree that the Swale has failed as a conveyance (albeit Mr. Sheehey maintains that the Swale would work with proper maintenance.) That there is a discharge method that improves the quality of the discharge, such as a swale, does not mean that the discharge to the Bay via the culvert extension is of insufficient quality. None of the parties tested the quality of the discharge from the Eastern Pond Culvert. The Department, nonetheless, offered evidence with regard to its quality. The Department concluded that the quality of the pond and its discharge were not of concern. Had the pond been contaminated to an extent that would have given rise to concerns, moreover, the Swale or the culvert extension as a means of conveying the discharge to the Bay would not have made a “discernible difference.” Tr. Vol. II at 80. The Department provided evidence of assumptions made with regard to the quality of the water that led the Department to conclude that testing of the discharge was unnecessary. Mr. O’Donnell, the Department’s expert in the application of state rules and statutes in wetland resource permitting, detailed the assumptions at hearing: My assumption was that that pond was dug some time in the past as a way to provide fill for roads. That it was never any part of . . . [a] stormwater treatment system. And that it conveyed upstream water through the pond and then on down into Choctawhatchee Bay. It was strictly a [borrow pit and a conveyance pond.] It was never permitted as a treatment system in any way that I was aware of in my diligence [in determining whether the extension should be permitted.] Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the record at the behest of Mr. Chbat, the burden shifted to Mr. Sheehey to prove that the applicant had not provided reasonable assurance of water quality. Mr. Sheehey did not offer evidence of any testing of the discharge. Nor did he offer testimony that rebutted Mr. O’Donnell’s opinion. In fact, the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported Mr. O'Donnell's opinion with regard to water quality. See Tr. Vol. III at 112. In sum, the Department made assumptions that are found to be reasonable based on Mr. O’Donnell’s expertise and experience. Those assumptions were not shown to be unreasonable by Mr. Sheehey. The Department’s conclusions about water quality flow directly from Mr. O’Donnell’s reasonable assumptions. Reasonable assurances have been provided that the project will not violate water quality standards. Public Interest Test Choctawhatchee Bay is not designated as an “outstanding Florida water.” The test that Mr. Chbat must meet therefore is whether the activity proposed by the permit application is “not contrary to the public interest.” § 373.414, Fla. Stat. In making that determination, the Department is directed by the statute to consider and balance seven criteria. See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at issue once water quality is determined to be of no concern. Two of the three, “[w]hether the activity will be of a temporary or permanent nature,” Section 373.414(1)(a)5., Florida Statutes, and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity,” Section 373.414(1)(a)7., Florida Statutes, do not require in-depth consideration. With regard to the nature of the project time-wise, the evidence establishes that the culvert extension is intended to be permanent. With regard to current condition, the area affected by the proposed activity is a residential lot, a substantial portion of which is under water following heavy rain. To facilitate the conveyance of stormwater, the lot is served by the Swale. The Swale is not functioning optimally because of lack of maintenance and because of the Ridge. With regard to relative value from the standpoint of water quality, the function being performed by the lot and the Swale is little, at least as established by this record. While it is certainly true that the lot with or without the Swale will filtrate and otherwise treat stormwater runoff from the pond, the difference in the quality of the stormwater conveyed by the culvert extension from that which would enter the Bay without the extension is not significant. See the discussion above of Mr. O’Donnell’s accepted opinions. Of the seven statutory criteria to be weighed and balanced by the Department, the one that is central to this case is found in subparagraph 1., of subsection (1)(a): “[w]hether the [culvert extension] will adversely affect . . . the property of others.” The “property of others” in this case is the property of Mr. Sheehey. The Project’s Effect on the Property of Mr. Sheehey. For the reasons discussed in paragraphs 63-70, above, Mr. Chbat has failed to provide reasonable assurances that the project will not have a detrimental effect on the property of Mr. Sheehey. The extent of the detrimental effect to Mr. Sheehey's property is difficult to determine from this record but it is highly likely based on all the evidence of record that there will be a detrimental effect: additional flooding in heavy rain events.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection deny17/ the Amended Permit for the failure of Mr. Chbat to provide reasonable assurances that the project will not adversely affect Mr. Sheehey's property. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an onsite sewage disposal system ("OSDS") permit, whether he is entitled to seek a variance from the permitting requirements in the statutory and regulatory provisions cited below, so as to authorize installation of an OSDS on his property near the Suwannee River, in the Town of Suwannee, in Dixie County, Florida. A related issue concerns whether the Petitioner is entitled to seek a variance in view of Executive Order 90-14 issued by Governor Martinez on January 1, 1990, which the Department maintains removes its discretion to consider variance requests for parties who hake been denied permits pursuant to Rule 10D-6.047(6), Florida Administrative Code. See Section 381.272, Florida Statutes, and Rules 10D-6.043-047, Florida Administrative Code.
Findings Of Fact The Petitioner, James F. Kazmierski, and his wife, purchased real property in the Town of Suwannee, Florida, in Dixie County, on December 29, 1988. The property is described as Suwannee River Park, Unit 2, Lot 19-1. The subject property is waterfront property located upon a saltwater canal. The property was purchased for a total price of $55,550.00. After the purchase of the property, the applicant invested an additional $30,000.00 in the construction of a sea wall and boathouse, making his total investment approximately $80,000.00. At the time the property was purchased by the applicant, other residential construction was proceeding in the Town of Suwannee and other septic tank and drain-field systems were being installed. Numerous other such systems were already installed and operating in the Town of Suwannee, Florida. In February of 1989, in preparation for construction upon the property, the Petitioner contacted the Dixie County Office of the Department regarding the procedures he would be required to follow in order to install an OSDS. An initial inspection was performed by a representative of the Department, and the Petitioner was informed that an OSDS could be installed on his property. Other than this initial inquiry and initial response from the Department, concerning his ability to secure a septic tank permit and installation of the OSDS on his property, the Petitioner did not submit a formal application for a permit at that time because he planned to construct a sea wall and boathouse on the waterfront-side of the property. Construction operations for this project would have necessitated the use of heavy equipment which could have destroyed or damaged an OSDS system if it were already installed. Due to delays in environmental permitting for that project, the sea wall and boathouse were not completed until February of 1990. After completion of those improvements along the canal front of his property, the applicant again contacted the Dixie County Office of the Department and was informed that he would be required to file an application in order to secure an OSDS permit. The applicant, accordingly, submitted the subject application to the Dixie County Office of the Department on February 20, 1990. After initial submission of that application, he was required to submit additional information in the form of a flood elevation information report from the District describing the ten-year flood elevation at the installation site, as well as securing an elevation survey by a registered land surveyor. This was done; and pursuant to stipulation entered into by the parties, posthearing, the District's ten-year flood elevation information report, as amended, reflects a ten-year flood elevation of 15 feet above MSL. The elevation survey of the property established that the actual surface elevation of the property is 4.68 feet. After submission of the flood elevation report and elevation survey, the Dixie County Office of the Department issued a letter of denial of the permit application because the permit application did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, in that the installation site, in the view of the Department, lay beneath the ten-year flood elevation and the bottom surface of the drain fields and absorption beds proposed would lie beneath that elevation. After receipt of that denial letter, the Petitioner, joined by his wife, submitted a letter to the Dixie County Off ice of the Department requesting "a hearing for a variance to obtain a septic tank permit . .". The Petitioner believed that he could avail himself of the Department's informal variance board procedure. The Department, however, advised the Petitioner that he should pursue a formal administrative hearing before the Division of Administrative Hearings. The Department advised the Petitioner that an application for a variance from the requirements of Rule 10D- 6.047(6), Florida Administrative Code, would not likely be granted because the property, in the view of the Department, was located within the ten-year flood elevation of the Suwannee River and that, pursuant to the Governor's Executive Order 90- 14, that the Department could not entertain or grant any such variance applications or permits for installations which would lie beneath that elevation. The Petitioner purchased the property with the intent to use it for residential purposes and proposes installing the requested OSDS for a private residence. That residence would contain approximately three bedrooms and a heated or cooled area of approximately 2,000 square feet. The property presently has available water service through a central water system for the Town of Suwannee and does not require the installation of a potable water well. Consequently, the lot size requirements contained in the Department's rules related to the installation of an OSDS and to setback distances for such systems from potable water wells, are not applicable or at issue herein. The Petitioner's property has an actual elevation at the grade surface of the installation site of 4.68 feet above MSL. The soils characterizing the proposed installation site are organic type soils down to approximately 18 inches beneath the grade surface and then the soil becomes a sandy loam-type of soil for perhaps two inches and then organic-type soil from 20 inches down to 48 inches. There is evidence of "mottling", which indicates damp soil, at approximately 6 to 10 inches beneath the surface of the property. Mottling coloration in subsurface soil such as this indicates a wet season water table level where the mottling occurs because it is due to moisture. The water table at the time the evaluation of the site was performed, however, was 36 inches below the existing grade level. The Petitioner suggests that mounding an OSDS system for this property might be feasible because it would place the OSDS septic tank and drainfield system in a filled mound of at least 36 inches height above existing grade level. If this could be done, it might be feasible to elevate the bottom surface of the drain field so that the required minimum of 24 inches differential between the bottom surface 0f[ the drain field and the level of the wet season water table could be maintained. This would be environmentally preferable to installing a conventional subterranean septic tank and drain- field system beneath the natural surface of the lot in question in terms of better protecting the ground and surface waters in the vicinity of the site from degradation through improperly treated sewage effluent, if appropriate slight or moderately limited soils were used in the construction of the mound which would contain the system. Thus, as the Department's witness acknowledged, a mounded system is a possible feasible alternative to accommodate the treatment of the sewage to be expected without causing an adverse impact on public health, the health of the users of the property, nor degradation of the ground or surface waters involved. Although a mounded system is a possible alternative, the Petitioner did not adduce sufficient evidence of technical information which-could show that such a system would, indeed, work properly in terms of having a sufficient, unobstructed land surface surrounding the mound in order to comport with the regulatory requirements in Chapter 10D-6, Florida Administrative Code. Although the technical details necessary to show that such a system would correctly operate on the property in question was not adduced into evidence, there is no dispute, however, that the gross lot size is adequate to accommodate such a mounded system. Thus, if appropriate slight or moderately limited soils were used in the construction of the mound and if it would otherwise conform to all the technical requirements of Chapter 10D-6, Florida Administrative Code, which was not shown, and if the ten-year flood elevation obstacle to permitting did not exist, it would seem that a mounded system could be designed and constructed so as to meet the regulatory requirements of Chapter 372, Florida Statutes, and Chapter 10D-6. The Petitioner did not suggest, through his testimony or evidence, any other reasonable alternative to a conventional subterranean OSDS. In any event, the proposed installation site was not shown to be above the ten-year flood elevation of the Suwannee River. Because of this, neither a mounded system nor any other type of alternative system has been shown to be capable of being installed at the site and comporting with the rules contained in Chapter 10D-6, Florida Administrative Code, particularly, Rule 10D-6.047(6). That is, with either the conventional or mounded system in mind, it has not been demonstrated that the bottom of the drainfield trenches or absorption beds at issue, as envisioned in this rule, would be above the ten-year flood elevation. A report prepared by the District and submitted by the applicant with his application, as amended by posthearing stipulation, establishes a reported ten-year flood elevation of 15 feet above MSL. The Petitioner adduced the testimony of Williams Pierce, an engineer with the District, in their case in chief. His testimony in the Silcox case (DOAH Case No. 90-2660) was stipulated into the record in the instant Mr. Pierce testified that the elevation in the District report (now 15 feet) is the elevation shown in the data contained in the computer model generated and maintained by the District. The information by which this computer model was designed, and which resulted in the 15-foot elevation comes from the U.S. Army Corp. of Engineers' data, along with data from the Federal Emergency Management Agency ("FEMA"), the Hydraulic Engineering Center in Davis, California, the U.S. Geological Survey and the National Oceanic and Atmospheric Administration. The storm surge component of that ten-year flood elevation came from data generated by a privately-contracted study prepared for the federal agencies and supplied to the District. Through the testimony of Mr. Pierce, the Petitioner established substantial doubt as to the accuracy of the 15-foot ten-year flood elevation. Mr. Pierce established that the ten-year flood elevation figure for the Suwannee River decreases as it is measured many miles upstream from the Town of Suwannee, when measurement proceeds in a downstream direction. Thus, for instance, the ten-year flood elevation at the Town of White Springs, at river mile 177, upstream from the coast is approximately 81 feet. The ten-year flood elevation at the location known as "Wilcox", some 33 miles above the confluence of the Suwannee River with the Gulf of Mexico, is approximately 16 feet. This decreasing ten-year flood elevation figure, as progressively measured downstream toward the coast, is a natural incident to the fact that the elevation of the land surrounding the Suwannee River declines in elevation above sea level as the land elevation is measured going in a downstream or coastward direction. That is, as the surrounding upland elevation declines, the waters of the Suwannee River, in a flood event, can spread outward from its channel over a wider area, due to being less confined by higher upland elevations, which results in the flood elevations being lower. Thus one would logically expect that if the ten- year flood elevation at Wilcox, 33 miles upstream, is 16 feet above MSL, the flood elevation at the Town of Suwannee, where the property in question lies, would be substantially lower. However, in the District's flood elevation data, the element of `1storm surge" is additively calculated in the ten-year flood elevation figure. This is designed to take into account surges caused by storms pushing water inland on the coast where the Suwannee River makes its confluence with the Gulf of Mexico. According to the District's data and Mr. Pierce's testimony, this would effectively raise tide actual ten- year river flood stage elevation level. The problem with the 15-foot, ten-year flood elevation figure is that Mr. Pierce was unable, in his testimony, to show how and why the storm surge closely correlates with the river flood stage to produce a 15- foot, ten- year flood elevation at the location of the Petitioner's property near the mouth of the river. Moreover, he was unable to establish in his testimony how tee District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with the ten-year flood event for the Suwannee River or what that probability might be. Thus, the Petitioner's evidence casts substantial doubt that the 15-foot, ten-year flood elevation figure is accurate and comports with logic. Therefore, it can be found herein that the 15-foot, ten-year flood elevation figure has not been proven to be accurate. The problem remains, however, that the Petitioner must establish that the installation site in question does not occur beneath the ten- year flood elevation of the Suwannee River. The Petitioner adduced no evidence to establish what the ten-year flood elevation might actually be nor that the installation site lies above it. Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drain field trenches or absorption beds lies above the ten-year flood elevation, so as to show that the installation site is not subject to inundation. The Petitioner did not formally apply for a variance from the permitting statute and rules, upon having the permit application initially denied by the Department. This is because the Department advised the Petitioner, in effect, that it would be futile to apply for a variance and to avail himself of the Department's informal variance procedure because of the effect of the Governor's Executive Order 90-14, entered on January 17, 1990. That Executive Order incorporated Recommendation No. 36 of the "Suwannee River Task Force" report, which recommended that all OSDS installations lying beneath the ten-year flood elevation of the Suwannee River be prohibited and that the grant of any permits for OSDS installations be down in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department, thus, takes the position that the entry of the Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and. advised the Petitioner to avail himself of a formal hearing procedure before the Division of Administrative Hearings rather than seek a variance through the Department's own internal variance procedure. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner will definitely experience a hardship if a permit or variance is not granted, because of the money expended to purchase and develop the lot, which will be largely unusable without the ability to establish a residence thereon by installing an OSDS system, it has not been proven that no reasonable alternatives exist to the installation of a conventional OSDS subterranean-type system on the property. The Petitioner proposed installation of a mounded system which has some promise as a reasonable alternative system (although sufficient evidence was not adduced to establish that such a system would adequately treat and dispose of the effluent in question without causing a public health hazard or degradation of ground and surface waters, as discussed above). Nor was sufficient evidence adduced of a lack of adverse environmental effects, in this regard, as to establish any other type of reasonable alternative approach to treatment and disposal of the expected sewage effluent. Thus, one element of the variance criteria cited below has not been met. A mounded system, with adequate proof, might be established as a reasonable alternative. It has neither been established that the installation of an OSDS system of the conventional subterranean type, nor any other type, would not have an adverse impact on public health or would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of the Petitioner for an OSDS permit. DONE AND ENTERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. 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 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3338 Petitioner's Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as irrelevant, since this is not a rule challenge proceeding pursuant to Section 120.56 Florida Statutes. 17-29. Accepted. Respondent's Proposed Findings of Fact: 1-4. Accepted. Rejected, as not in accordance with the preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-13. Accepted. 14. Rejected, as subordinate to the Hearing Officer's findings of fact and as not entirely in accordance with the preponderant evidence. COPIES FURNISHED: Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
The Issue The issue to be determined in this case is whether All Aboard Florida – Operations, LLC (“the Applicant”); Ram Land Holdings, LLC (“RLH”); and J. Acquisitions Brevard, LLC (“JAB”), are entitled to the Environmental Resource Permit (“ERP”) issued by the St. Johns River Water Management District (“SJRWMD”) for construction and operation of certain railway facilities within the portion of the Florida East Coast Railway corridor known as Segment D08 (the “Project”).
Findings Of Fact The Parties The Petitioner is a water control district organized under chapters 189 and 298, Florida Statutes. It owns and maintains the North, Main, and South Canals in Indian River County. The Petitioner manages drainage works for approximately 55,000 acres within Indian River County situated west of the Indian River Lagoon between U.S. 1 and I-95, including portions of the City of Vero Beach. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company headquartered in Miami, Florida, formed for the principal purpose of developing and operating express passenger rail service connecting the four largest urban population centers in Southern and Central Florida--Miami, Fort Lauderdale, West Palm Beach, and Orlando. This project is known as the All Aboard Florida Project. Respondents, RAM Land Holdings, LLC, and J. Acquisitions Brevard, LLC, are third-party mitigation providers. The parties stipulated that RLH and JAB are not necessary parties to this proceeding. SJRWMD is an independent special district created by chapter 373, charged with the duty to prevent harm to the water resources of the District and to administer and enforce chapter 373 and the rules promulgated thereunder. The proposed project is within the boundaries of the District. The Proposed Project Most of the Applicant’s passenger service route, including the portion which will pass through Indian River County, will use an existing railroad right-of-way established in the late 1800s by Henry Flagler, the founder of the Florida East Coast Railway (“FECR”). The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It was designed to support passenger and freight operations on shared double mainline tracks and was in use from 1895 to 1968. The passenger service was then terminated and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The Project would restore the passenger service that once existed on the FECR rail corridor. The passenger service route will utilize the FECR right-of-way from Miami to Cocoa Beach and then continue along a new segment to be constructed along a limited-access highway system which runs inland from Cocoa Beach to Orlando. The Applicant is proposing to upgrade the portion of the FECR right-of-way between Miami and Cocoa Beach by, among other things, replacing existing railroad ties and tracks and reinstalling double tracks. This proceeding involves only Segment D08 of the proposed Project. Segment D08 runs from the southern edge of Indian River County to Cocoa Beach in Brevard County. In Segment DO8, the existing FECR railway includes bridges which cross the North Canal, Main Canal, and South Canal owned and maintained by the Petitioner. The bridges are referred to as the North Canal Bridge, the Main Canal Bridge, and the South Canal Bridge. Each bridge supports a single track. The Project calls for adding new bridges alongside the three existing bridges over the canals so that the crossings will again accommodate two tracks. The Petitioner’s objections to the proposed permit are confined to the proposed bridges at the North Canal and South Canal. The new bridge at the North Canal would be constructed along the west side of the existing bridge. The new bridge at the South Canal would be constructed along the east side of the existing bridge. Obstruction of Water Flow The Petitioner’s main objection to the proposed project is that the proposed new bridges over the North Canal and South Canal are too low to allow clearance during a 100-year storm event, which would cause water flow to be obstructed. The Petitioner believes floating debris is likely to be blocked and accumulate at the bridges, causing water to back up and flood lands upstream of the bridges. The Petitioner’s Superintendent, David Gunter, testified that there were “a couple of events where debris backed up either at a bridge or a culvert.” However, he said none of the Petitioner’s ratepayers ever had a flooding event that was attributable to the FECR bridges. The new bridges would be constructed with the same low chord/beam elevations (lowest part of the bridge) as the existing bridges that would remain. For the existing bridge and the proposed new bridge over the North Canal, the low beam elevation is 13.1 feet NAVD88 (North American Vertical Datum 1988). For the existing bridge and the proposed new bridge at the South Canal, the low beam elevation is 8.5 feet NAVD88. Because the proposed new bridges would be at the same height above the canals as the existing bridges, the potential problem the Petitioner is concerned about--floating debris being trapped by the bridges--is already a potential problem. The Petitioner did not claim or present evidence to show that the new bridges would increase the probability that floating debris would be trapped, over and above the current probability for such an event. The Petitioner argued that “two wrongs don’t make a right,” and the new bridges should not be approved even though they are at the same height as the existing bridges. Obviously, the Petitioner wants the existing bridges raised, too. Based on the FEMA Flood Insurance Rate Maps used by the Applicant, the 100-year flood elevation at the North Canal bridge is 11.5 feet NAVD88, or 1.6 feet below the low beam elevation of the North Canal Bridge. The 100-year flood elevation at the South Canal Bridge is 9.3 feet NAVD88, or 0.8 feet below the low beam elevation of the North Canal Bridge.1/ The Applicant’s consultants performed hydrologic and hydraulic analyses for the proposed new bridges using a HEC-RAS model which was adapted to local site-specific conditions and incorporated FEMA flood level data. They determined that in a 100-year storm event, the new bridge at the North Canal would cause no more than a 0.04-foot (0.48 inches) increase in water levels immediately upstream (within 500 feet) of the bridge, and the new bridge at the South Canal would result in no more than a 0.07-foot (0.84 inches) increase in water levels immediately upstream. These were considered insignificant impacts that would not cause flooding to upstream properties. The Petitioner disputes the Applicant’s determination that there is a 1.6-foot clearance at the North Canal Bridge and a 0.8-foot clearance at the South Canal Bridge. The Petitioner asserts that the FEMA elevations used by the Applicant are not based on the best available data, and the best available data show the 100-year flood elevations are higher. The Petitioner calculated higher 100-year flood elevations using SJRWMD flood stage gages in the canal near the North bridge and the Petitioner’s own hydrologic model. The Petitioner determined that the low beam at the North Canal bridge is 0.6 feet below the 100-year flood level, and the low beam at the South Canal bridge is 1.5 feet below the 100-year flood level.2/ In other words, the Petitioner contends there is no clearance. The Petitioner’s witness, Simons, testified about why he thought FEMA did not use the Petitioner’s water level data and analysis in determining 100-year flood elevations for the FEMA flood maps, but the testimony was largely hearsay. SJRWMD’s Applicant’s Handbook refers to the use of FEMA flood level data for these kinds of analyses, but it also refers to the use of “detailed information” possessed by SJRWMD. See Section 3.3.4, A.H., Vol II. Information possessed by SJRWMD would likely include data from their own water level gages. The Petitioner did not present sufficient evidence to prove their data and modeling was more accurate or reliable than FEMA data and the Applicant’s modeling. FEMA flood insurance rate maps are a standard reference in the industry. The HEC-RAS model is a generally accepted tool used by engineers for this kind of analysis. None of the parties presented evidence to make clear what is the usual or industry protocol for choosing between conflicting data of this kind in the permitting process. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. It is found, therefore, that the Applicant’s use of FEMA data and the HEC-RAS model was reasonable. The Petitioner admitted that the 100-year flood elevation in the canals has been increasing over time because of the conversion of land uses in the area from agricultural to urban. Because the Petitioner regulates discharges to its canals, it has some responsibility for the rising water levels in its canals. The Petitioner claimed that reduced clearance was due in part to the bridges from “age, use, lack of maintenance, frugality or causes other than design.” However, the Petitioner presented no supporting evidence for this allegation in the record. In its regulatory role, the Petitioner requires a minimum clearance of one foot between a bridge’s lowest horizontal beam and the 100-year flood elevation to avoid obstruction of water flow through the canals. SJRWMD rules do not specify that bridges be designed to have a minimum clearance above the 100-year flood elevation. The applicable design standards for flood protection in the Applicant’s Handbook are set forth in Section 3.3.2(b), A.H., Vol. II, which provides in pertinent part as follows: Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other water courses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource. It is presumed a system will meet this criterion if the following are met: * * * A system may not cause a net reduction in the flood conveyance capabilities provided by a floodway except for structures elevated on pilings or traversing works. Such works, or other structures shall cause no more than a one-foot increase in the 100-year flood elevation immediately upstream and no more than one tenth of a foot increase in the 100- year flood elevation 500 feet upstream. The bridges would not cause more than a one-foot increase in the 100-year flood elevation immediately upstream or more than one tenth of a foot increase in the 100-year flood elevation 500 feet upstream. Therefore, the Applicant is presumed to have provided reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property, or adversely impact the existing surface water storage and conveyance capabilities of the North Canal or South Canal. The Petitioner argues that the SJRWMD criteria fail to account for floating debris. The Petitioner claims that bridge designers are obliged to follow basic design guidelines published by FDOT and other government agencies and provide clearance for floating debris, but Petitioner did not offer into evidence these “basic design standards” or prove their industry- wide acceptance.3/ SJRWMD’s engineer, Fariborz Zanganeh, stated that the potential for floating debris to be blocked by a bridge or any other traversing work is considered by SJRWMD to be an operation and maintenance issue, not a design issue. The Petitioner referred to some road bridges in the area that, upon reconstruction, were raised by county, state, or federal governments to comply with the Petitioner’s clearance requirement. First, it is noted that the Applicant does not propose to reconstruct the existing North Canal Bridge and South Canal Bridge. Second, there is a substantial difference between the effort and cost of raising a road and raising a railroad track. Raising the proposed bridges would require elevating the railroad bed for a considerable distance in each direction so that slopes comply with railway safety criteria. The Petitioner failed to prove the Project does not comply with SJRWMD flood control criteria. The Sand Bar The Petitioner also objects to the proposed bridge at the North Canal because the Petitioner contends the existing bridge pilings have caused a sand bar to form, and shoaling and erosion would likely increase with construction of additional pilings. The Petitioner believes the problem is caused by the fact that the existing and proposed pilings, which would have the same alignment, are not parallel to water flow in the canal. There are sand bars upstream of the bridge which cannot have been caused by the bridge pilings. The North Canal, which runs downstream almost due east makes a turn to the northeast under the North Canal Bridge. The record evidence, as well as generally known facts of which the Administrative Law Judge may take official recognition, establish that a change in the direction of water flow in a channel creates non-uniform flow, which can cause erosion and shoaling. The Petitioner did not present evidence to distinguish between shoaling and erosion that could be caused by the pilings and shoaling and erosion that could be caused by the turn in the canal. The Petitioner did not call a witness for this subject who had special knowledge of the science of hydraulics and no study was done by the Petitioner to confirm its theory of the cause. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. The Applicant asserts that the conditions of the proposed permit provide for maintenance that would include “the removal of any buildup of siltation that might occur over time and potentially cause the North Canal Bridge structure to cease operating as designed.” However, whether the bridge is operating as designed would not address whether the canal is operating as designed because of shoaling. There is no condition in the proposed permit that imposes on the Applicant the duty to remove built-up sediment beneath the North Canal Bridge. It is unlikely that such a requirement can be imposed on the Applicant because it does not own or control the canal. The Petitioner claims the railroad authority denied the Petitioner access to the right-of-way when it sought permission in the past to remove the sandbar at the North Canal Bridge. Unfortunately, a permit condition that requires the Applicant to cooperate with the Indian River Water Control District in performing canal maintenance at the bridges is probably not enforceable.
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 approving the issuance of Environmental Resource Permit No. 135214-2, with the conditions set forth in the Technical Staff Report dated August 26, 2016. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
The Issue The ultimate issue to be resolved in this proceeding is whether GDC has provided reasonable assurance that its proposed activities will not result in violations of the Department's water quality standards. GDC contends that its proposed activities will have either a positive effect on water quality in receiving waters, or no effect at all. The Department contends that the activities would cause a degrading of water quality and contribute to violations of water quality standards that already occur in the area.
Findings Of Fact The activities proposed by GDC are located within the Melbourne-Tillman Water Control District ("MTWCD" hereafter) in southern Brevard County, Florida. The MTWCD is a special taxing district which was established in the 1920s. It comprises a total area of 98 square miles. An extensive canal and drainage ditch system was constructed by MTWCD shortly after its creation. The purpose of the system was primarily to accomplish flood control to allow agricultural activities. The system consists of numerous "finger canals," or closed-ended drainage ditches which ultimately feed into a main east-west canal known as "C- 1." Water from the C-1 canal discharges directly into a natural stream known as "Turkey Creek" at a point in close proximity to the Port Malabar Boulevard Bridge. Turkey Creek flows into the Indian River, which is a part of the Intercoastal Waterway. The discharge point of the C-1 canal into Turkey Creek is located approximately 1 1/2 miles from the Indian River. Turkey Creek, the C-1 canal, and the other canals and drainage ditches within the MTWCD are Class III waters, as described in the Rules of the Department of Environmental Regulation. GDC acquired most of the property within the MTWCD during the 1950s. GDC remains the primary landowner within the District. After it acquired the property, GDC sought to modernize the water control system. A navigational lock and dam structure has been constructed at the discharge point of the C-1 canal and Turkey Creek. This structure, known as "MS-1," serves to regulate flows into Turkey Creek and thus serves to regulate water level within C-1 and the entire drainage system. MS-1 also serves to allow navigation into C-1 via Turkey Creek from the Indian River. A number of subdrainage basins can be identified within the MTWCD depending upon which canal drains the basin into C-1. One of these basins is designated the "C-37" basin. The primary drainage canal within the C-37 basin is the C-37 canal. The C-37 canal discharges into C-1 at a point approximately 4 miles from the MS-1 structure (the discharge point of the C-1 canal into Turkey Creek) . At least 10 separate dead-end canals or drainage ditches discharge into the C-37 canal. The C-37 drainage basin encompasses approximately 12 square miles within the MTWCD. Numerous residential structures have been constructed within the C-37 basin, and more are proposed. Water quality in the canals and drainage ditches within the MTWCD is generally poor. Dissolved oxygen levels in waters within the C-37 basin are frequently below the Department of Environmental Regulation's minimum standard of five parts per million. Dissolved oxygen violations are also common in the C-1 canal, both upstream and downstream of MS-1. It does not appear that the MS-1 structure has adversely affected dissolved oxygen levels within the C-1 canal. Some improvement has been noted in dissolved oxygen levels downstream of MS-1, probably as a result of turbulence that occurs in connection with operation of the structure that serves to aerate the water. Water quality in closed-ended canal systems such as the C-37 basin and the entire MTWCD system is typically poor. Violations of the Department's dissolved oxygen standards are common in such systems. Through its application, No. 05-21282, filed with the Department of Environmental Regulation, GDC is seeking a permit to construct a water control structure and boat lock at the point where the C-37 canal meets the C-1 canal, and to widen and deepen existing canals and drainage ditches within the C-37 basin. GDC proposes to excavate approximately 1,283,302 cubic yards of material from the existing canals and to place 38,000 cubic yards of material in the C-37 canal in connection with construction of the water control structure and boat lock. The proposed structure and boat lock has been designated "MS-3." There is now a slight dogleg at the point where the C-37 canal meets the C-1 canal. GDC proposes to fill that area and to connect the canals in a more straight-line manner through MS-3. Approximately 10 miles of canals and drainage ditches within the C-37 basin would be dredged from 1 to 8 feet. The C-37 canal would be widened from its present 10-foot channel width to 100 feet. The MS-3 structure would be designed to provide navigation in the C-37 and connecting canals. The structure would also serve to control the water levels within the C-37 system. GDC has agreed with the MTWCD to obtain necessary permits and construct the MS-3 structure. The proposed MS-3 structure is a part of GDC's overall plan for upgrading the MTWCD system. The MS-3 structure would have six 20-foot adjustable weir gates. It has been designed to accommodate a 10-year, 24-hour storm. The structure would be utilized to maintain the level of water within the C-37 basin at an elevation of 12.5 feet n.g.u.d. during the wet season and 16.0 feet n.g.u.d. during the dry season. The dry-season level would be set high in order to conserve water within the C-37 basin. The wet-season level would be set low in order to provide flood control and a gradual discharge of runoff from the basin. Water would flow from the C-37 basin into C-1 through an overflow structure. There would be a 6-foot drop from MS-3 into the C-1 canal. Existing canals and ditches within the C-37 basin typically have 2:1 slopes. GDC proposes to maintain similar slopes, or to improve them to a 3:2 ratio. The MS-3 structure and dredging and filling operations proposed by GDC are likely to cause a deterioration of water quality within the C-37 basin and a deterioration in the quality of water that is discharged from the C-37 basin in terms of dissolved oxygen levels. This degrading of water quality is likely for seven reasons. First, the canals will be deepened. Typically deeper water bodies, especially in closed-ended canal systems such as the C-37 basin, have lower oxygen levels below the surface than do shallower water bodies. Second, the water levels which GDC proposes to maintain within the C-37 basin will increase groundwater flows into the canals and ditches, especially during the wet season. Groundwater has very low levels of dissolved oxygen. Third, increased boating activity that would result because navigation in the C-37 basin would become possible would contribute to oils and greases in the water. Increased levels of oils and greases increase biological oxygen demand and reduce dissolved oxygen levels. Fourth, the C-37 basin would become an impounded water body. The result would be less mixing of the water, increased biological oxygen demand and reduced oxygen levels. Fifth, vegetation would be removed as a result of dredging activities and as a result of boating activity made possible by the dredging activities. Vegetation serves to uptake nutrients from a water body and to improve water quality. The beneficial sorts of emergent vegetation that presently exist within the C-37 basin will have difficulty reestablishing themselves once the dredging activities are completed. This is because the water bodies will be made deeper, water levels will vary sharply and because of boating activities. Sixth, erosion of the canals and ditches is likely to continue as it has in the past. The restructuring of the slopes and the loss of vegetation are likely to increase the level of erosion. Erosion brings increased sediment into a water body. Increased sediment increases biological oxygen demand and reduces dissolved oxygen levels. Seventh, the swale system proposed by GDC to capture upland runoff before it enters the canal system is not adequate to retain pollutants from the runoff and to keep them out of the canal system. As development increases, the amount of pollutants entering the system is likely to increase, and dissolved oxygen levels are likely to be reduced. Some features of the proposed project would serve to improve dissolved oxygen levels that leave the C-37 basin. As water left the basin, it would be aerated because of the 6-foot drop that would occur. This aeration would serve to increase dissolved oxygen levels. The widening and deepening of the canals would also serve to slow the velocity of flows within the C-37 basin, and thus to allow more sediments to drop out of the water that would be passed on to the C-1 canal through MS-3. While these features would serve to improve the dissolved oxygen level in water downstream from MS-3, they would do nothing to improve dissolved oxygen levels within the C-37 basin. The project is likely to cause a deterioration of dissolved oxygen levels within the basin. The features of the project that would serve to improve dissolved oxygen levels downstream are not sufficient to overcome that deterioration and, overall, the project is likely to have a negative impact upon dissolved oxygen levels downstream from MS-3. Dissolved oxygen levels within the C-37 basin and in the C-1 canal already typically violate the Department's dissolved oxygen standards. The project proposed by GDC is likely to increase the frequency and degree of water quality violations.
The Issue Whether the Respondents have polluted by dredging and filling within the landward extent of waters of the state, to wit: Choctawatchee Bay, without a permit for said dredging and filling. Whether the Orders for Corrective Action requiring removal of the fill material and restoration of the disturbed wetlands are reasonable and appropriate.
Findings Of Fact Ralph Ritteman has owned some interest in property which has been developed as a subdivision known as Sunset Point, including Sunset Point Addition, since approximately 1970. This property adjoins Choctawhatchee Bay and the Intercoastal Waterway in Walton County, Florida. In early 1984, a subdivision plat was recorded far lots 1-13. That plat showed two areas specifically not to be a part of it. Those two areas were the site of dredging and filling activities by Ralph Ritteman, wherein he had eleven ponds excavated and the spoil placed on the property. The Department of Environmental Regulation asserts that the excavation of the ponds and the placement of the spoil occurred in jurisdictional wetlands of the state. Ritteman asserts that the property is not jurisdictional and that no permit was needed. The primary dredge and fill activities occurred between June and October, 1984. Ritteman represented that these were the dates of the activity in an after-the-fact permit application which he filed with DER but later withdrew. In the course of his testimony in this proceeding, Ritteman took the position that he did the dredging and filling after a November 14, 1985, seminar presented by DER regarding wetland regulations wherein he was misled by a document distributed by DER entitled "State of Florida Joint Application for Permit," which covered dredge and fill guidelines. Specifically Ritteman testified that he did the dredging and filling after that seminar. It can only be concluded that Ritteman's testimony in that regard is false and that Ritteman did the unpermitted dredging and filling in 1984 and knew at the time that his activities were at the every least questionable. Specifically, (1) The 1983 plat shows these exact wetland areas as excluded; (2) A February 14, 1985, buyback agreement between Ritteman and Jerry Johnson, a purchaser of a lot on which the dredging and filling activity had occurred, showed that there was an existing concern about future action by a public agency to require restoration of the property to its prior condition; (3) John Brett, a Respondent herein because he purchased a lot from Ritteman in the affected area, bought the lot in 1985 with the existing ponds in place except for a land bridge which Ritteman had excavated (in 1985) and the fill placed for Brett to use as a homesite; and (4) Richard Sczcepanski, a Respondent herein, bought his lot in February, 1985, and the ponds and spoil were already in existence. Further, observation of Ritteman during his testimony and appearance at this proceeding leads this fact finder to the conclusion that Ritteman was less than candid in all of his testimony and dealings. After engaging in this unpermitted dredging and filling activity, Ritteman divided the affected area into lots and sold these lots to John and Dorothy Brett, Richard Szczepanski, Joe Williams, Jerry Johnson, Mohamed Yazdi, and Reza Toossi. A plat of the newly created lots was recorded as the Sunset Point Addition. All of these purchasers were named by DER in its Notice of Violation. Only the Respondents herein requested a hearing. The lots were sold by Ralph Ritteman and the Florida-Minnesota Land Company. However, that corporation's authority to do business in Florida was revoked on November 10, 1983, by the Secretary of State's Office. The DER discovered the unpermitted activity in 1986 and conducted an investigation to determine if the property impacted by the dredging and filling had been jurisdictional wetlands. The sites described in the Notice of Violation are vegetated with plant species consisting of black needlerush (Juncus roemerianus), sawgrass (Cladium iamaicense), salt meadow cordgrass (Spartina patens), salt grass (Disticalus spicata), and giant reed (Phraomites australis). The Department's investigation, using core samples, located the former surface of the undisturbed wetland beneath approximately 1 1/2 feet of dredged spoil material; the plant species Juncus roemerianus was also identifiable beneath the layer of spoil material placed on top of it by Ralph Ritteman. A beach berm is present at the shoreline interface of the marsh areas with Choctawhatchee Bay. Beach berms such as this one are typically built up in most marshes by the wave action. On the site are piles of unconsolidated fill material that was excavated from the pond areas. Included in this excavated material is muck and black silt-type material associated with salt marsh and gray clay material which was the underpan or confining layer. The Soil Survey Report of 1985 for Walton County shows that on the south site of the dredging activities, the soil type (prior to the excavation and filling) was Duckston muck, which is found in frequently flooded areas in very poorly drained sandy soils in marshes bordering salt water bays. Duckston muck consists of a 4-inch surface layer of black muck over loamy sand. The northern site soil type is Dirego muck, also found in frequently flooded areas with very poorly drained organic soils that occur in tidal marshes. Dirego muck consists of about 28 inches of muck overlying fine sand and loamy fine sand. A 1982 aerial photo clearly shows the delineation between the marshgrass area and the uplands. The current conditions at the site are entirely consistent with the delineation shown in this photo. There are remaining wetlands at the site in an area denoted as the homeowners park on the plat map of the Sunset Point Addition. There is an interchange of water between the remaining wetlands and the bay. Based on all the data, including, but not limited to, aerial photographs, remnant and existing vegetation, site observations, topography, hydrological data and soil types, it is clearly established that, prior to this unpermitted activity, there was a regular, periodic interchange and exchange of water between these wetlands and waters of the state. The two areas of unpermitted activity clearly fall within the jurisdictional wetlands of the state. Choctawhatchee Bay is brackish water and is tidally influenced. In a misapplication of the statute and rule, Ritteman offered into evidence a survey which purported to show the 1 in 10 year flood event elevation. This elevation line was set by surveyor Basil Boles memory of rainfall and his observation of the rack-line or detritus on the beach as it existed in October, 1988. This elevation was not developed by the appropriate engineering techniques required by Section 403.8171, Florida Statutes, and is therefore given no weight. The unpermitted dredging and filling has resulted in pollution as defined by statutes and it eliminated and destroyed plant life in jurisdictional wetlands. It also eliminated the interchange of waters and the contribution of that interchange to the ecology and viability of the marsh system in the area. The Department expended in excess of $494.23 in investigating this violation, but it sought only $494.23 in the Notice of Violation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein: Find Ralph Ritteman guilty of the violations charged for the unpermitted dredge and fill activity within the landward extent of waters of the state. Order Ritteman to bear the cost of and to perform restoration as specified in the Orders for Corrective Action. Order Ritteman to pay $494.23 to the Department of Environmental Regulation for the investigation of this violation. Order John and Dorothy Brett, Joe Williams and Richard Szczepanski to provide cooperation and site access during the restoration activities. DONE and ENTERED this 18th day of January, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-2560/88-3532/88-3533 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific' Rulings on Proposed Findings of Fact Submitted by Petitioner Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 (1, 6 & 7); 2 (3 & 5); 3(6 & 8); 4(9); 5(10); 6(15); 7(16); 8 first paragraph (2); and 9(18). The last two paragraph of proposed finding of fact 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Ralph Ritteman 1. The proposed findings of fact and conclusions of law and argument are so intermixed in Rittemans proposed order that specific rulings are difficult. However, to the extent that proposed facts are not actually contained in this Recommended Order, they are rejected as being unsupported by the credible, competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Szczpanski 1. The proposed findings of fact and conclusions of law and arguments are so intermixed in Respondents proposed order that specific rulings are difficult. Further, Respondents attempt to introduce new evidence regarding current condition of the property and the adjoining waterbodies and engineering standards. To the extent that proposed findings of fact are not actually contained in this Recommended Order, they are rejected as being unsupported by the credible, competent, substantial evidence introduced at hearing. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard L. Windsor Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Ralph Ritteman Post Office Box 1747 Santa Rosa Beach, FL 32459 John Brett 532 Clifford Street Ft. Walton Beach, FL 32548 Joe Williams 10 Marlborough Road Shalimar, FL 32579 Richard Szczepanski Post Office Box 855 Shalimar, FL 32579
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
