Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Respondent, Southwest Florida Water Management District (the "District"), should approve the application of Respondent, Florida Department of Transportation ("DOT"), for modification of a standard general environmental resource permit: modification permit no. 44011760.010 (the "modification permit").
Findings Of Fact Petitioner owns a developed parcel of mixed-use property in Pinellas County, Florida, known as the U.S. 19 Commerce Center (the "Commerce Center"). The Commerce Center is proximate to U.S. 19 and is located within the Alligator Creek Watershed. DOT is the state agency charged by statute with responsibility for the construction, maintenance, and operation of the State Highway System, including U.S. 19. DOT proposes a highway reconstruction project of a portion of U.S. 19 that is proximate to the Commerce Center and located within the Alligator Creek Watershed. DOT seeks the modification permit from the District in order to complete the highway reconstruction project. The District is a political subdivision that operates under the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes (2001). (All statutory chapter and section references are to Florida Statutes (2001) unless otherwise stated.) The District is responsible for regulating, among other things, environmental resource permitting in Pinellas County, including the permitting for any regulated activity within the Alligator Creek Watershed. The area of concern for the District in this case involves a sub-basin within the Watershed that is crossed by several channels and drainage ditches including those identified by the parties as Channel A, Channel G, and the "east-west ditch." The channels and ditches in the sub-basin eventually flow into the ultimate outfall for the entire basin. On June 21, 1999, the District issued Environmental Resource Permit ("ERP") No. 4411760.008. The parties refer to that permit as the ".008" permit or the "original permit." Petitioner did not challenge the original permit. The original permit authorized DOT to construct a surface water management system for anticipated runoff caused by the reconstruction of U.S. 19 in the vicinity of Drew Street and the Commerce Center (the "original project"). DOT designed the original project to collect post development stormwater runoff, treat the runoff, and discharge it. The original project included several surface water detention ponds east of U.S. 19 in the vicinity of the Commerce Center. The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1, and 4E2. DOT intended to locate Pond 4B on Commerce Center property. However, DOT and Petitioner were unable to agree on terms, and DOT filed a condemnation action in circuit court pursuant to DOT's power of eminent domain. DOT withdrew the condemnation action against Petitioner sometime before January 19, 2001. On January 19, 2001, DOT applied to the District for approval of a modification to the original permit. On June 1, 2001, the District issued permit modification No. 44011760.010. The parties refer to this second permit alternatively as either the ".010" permit or the "modification permit." This second permit is the modification permit that is at issue in this proceeding. The modification permit eliminates Pond 4B and authorizes the addition of Pond 4C to be located on property that is not owned by Petitioner. The modification permit also combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds 4E1 and 4E2 into Pond 4E. In addition, the modification permit moves the point of discharge in the east-west ditch to the west closer to U.S. 19 and farther from the Commerce Center; places 7.72 acre-feet of fill in the 100-year flood plain; compensates for the fill by equivalent excavation and storage modeling; and places impervious liners in two ponds (the "modified project"). The modified project slows the rate of discharge in the system and increases water quality treatment. The modified ponds will have more storage volume, and the discharge rates from the ponds will be lower. The modified ponds will peak at hour 12 of a 25-year, 24-hour storm event. The modified project will discharge into Channel A and the east-west ditch. Petitioner challenges the modification permit, in relevant part, on the ground that DOT does not own the property required for the modified project and cannot acquire control of the property through the power of eminent domain. During the hearing, Petitioner represented that DOT had previously begun two condemnation actions to acquire property necessary for the original project but had entered voluntary dismissals of both actions. Petitioner argued that Florida Rule of Civil Procedure 1.420 bars DOT from instituting any future eminent domain actions to obtain control of property needed for the modified project. The evidence does not reveal the underlying facts associated with the condemnation actions referred to by Petitioner. If Petitioner were to demonstrate the legal necessity for DOT to acquire control of a portion of Commerce Center property in order to complete the modified project, there would be no evidentiary basis for a finding that the portion of Commerce Center property required for the modified project would be identical to that DOT previously sought to condemn twice in connection with the original project. Petitioner did not demonstrate the legal necessity for DOT to acquire control of Commerce Center property in order to complete the modified project. Applicable rules do not require ownership of property by entities with the power of eminent domain, including DOT. Rule 40D-4.101(3). Ownership is not a condition of issuance but is merely information that must be included in the permit application. Rule 40D-4.101(2). The original ALJ in this case issued a prehearing order that prohibits Petitioner from challenging DOT's ownership of the property needed to complete the modified project. The law of the case established in the prehearing order, prohibits Petitioner from challenging: the legal right of DOT to discharge into the east-west ditch; the legal ownership or control of the area of the project where Pond 4E is to be located; and the legal right to utilize Petitioner’s stormwater "retention" area. The preponderance of evidence shows that DOT currently owns all of the property necessary to construct the modified project. Furthermore, the modification permit specifically provides that DOT cannot begin construction until DOT owns or controls all property necessary for the modified project. The District correctly reviewed the application for the modification permit. The District correctly applied the design and performance criteria set forth in the Basis of Review for Environmental Resource Permit Applications (the "BOR"). The BOR is adopted by reference in the District’s rules. Rule 40D-4.091(1). The parties entered into several stipulations in addition to those previously discussed. In relevant part, the parties stipulated that no special basin criteria apply to the modified project. The parties also stipulated to the accuracy and veracity of the Alligator Creek Watershed Study (the "Alligator Creek Study"). The Alligator Creek Study is the only known source of both elevations and timings during rainfall events for the area surrounding the modified project. Among other things, the Study predicts stormwater levels in various locations during severe rainfall events. The predictions are based upon existing drainage capacity within the Alligator Creek basin and also upon certain assumptions regarding conditions that exist at the time that a rainfall event begins. The Alligator Creek Study, for example, predicts a high water level in Channel A of 23.28 feet at hour 16 during a 25-year, 24-hour storm event. The prediction is based upon the capacity of the receiving water-body, the current rate at which surface areas currently discharge into that water-body, and the assumption that the rainfall event is uniform across the entire Alligator Creek basin. The Study also assumes mean high tide at the ultimate outfall of the basin. The stipulations between the parties leave several issues to be determined. One issue is whether the east-west ditch is an historical discharge location in the area surrounding the modified project. The original permit and the modified permit authorize runoff to discharge into two locations. One location is the east-west ditch, and the other is Channel A. Petitioner claims that the east-west ditch is not an historical discharge location but is a detention facility constructed by Petitioner and is Commerce Center property that DOT cannot utilize in the modified project. In a prehearing order, the original ALJ in this case prohibited Petitioner from raising the arguments that the east-west ditch is not an historic discharge location and that DOT is not legally allowed to discharge into the ditch. Nevertheless, Petitioner submitted evidence relevant to the claim that the east-west ditch is not an historical discharge point. The modified project is located in an open drainage basin because the basin does not satisfy the definition of a closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable discharge for projects in an open basin is the historic discharge. BOR 4.2.a.1. The District determines historic discharge first by reference to an existing or permitted site. BOR 4.2.a. The District considers a discharge at a point that has been permitted by the District to be a legally allowable discharge. The east-west ditch is a permitted discharge point in the original permit, and Petitioner does not challenge the original permit. The modified project moves the discharge point in the east-west ditch to the west farther from Commerce Center property. That change does not alter the determination that the modified project utilizes an historic discharge point authorized in the original permit. The discharge point for the modified project is within a permitted location in the original permit. In any event, Petitioner failed to show any adverse impact caused by moving the discharge point in the east-west ditch further west away from the Commerce Center. Putting aside the original permit, Petitioner claims that the east-west ditch did not historically extend west to U.S. 19 but was a detention pond required by the City of Clearwater as a condition of approval for the original development of the Commerce Center. The District looks back in time until 1984 to determine historic discharges. The historical drainage flow patterns for the locale of the modified project were in existence as early as 1971. The preponderance of evidence shows water flowing in the historical drainage pattern to the area of the east-west ditch. Prior to 1984, Petitioner excavated the east-west ditch to further enhance the drainage flow pattern. This is the drainage flow pattern that exists at the project location today. Another issue left unresolved by the stipulations between the parties is whether DOT provided reasonable assurances that the modified project will not cause adverse water quantity impacts to receiving waters and adjacent lands in accordance with the requirements of Rule 40D-4.301(1)(a). The appropriate standard for determining water quantity impacts for the modified project is the peak rate of runoff, rather than the volume of runoff. Compare BOR 4.2.a (defining allowable discharge in an open basin by reference to peak rates) with BOR 4.2.c (defining allowable discharge in a closed basin by reference to volume). Petitioner stipulated that there are no special basin criteria associated with the modified project, and Petitioner did not challenge the validity of the District's rules including those that measure water quantity impacts by peak rates of discharge. The District required DOT to calculate pre- development and post-development rates of runoff based on the District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution. BOR 4.2.b. The data utilized by DOT are based on the assumption that rainfall will occur simultaneously over the entire basin. The assumption supports calculations based on a greater quantity of rainfall over the entire basin than would occur if it were assumed that rainfall began in a portion of the basin and then proceeded to cover the entire basin. DOT provided reasonable assurances that post- development discharge rates in the modified project will not exceed pre-development rates. Post-development discharge rates for the east-west ditch and for Channel A are 50.7 and 13.5 cubic feet per second ("cfs"), respectively. The respective pre-development discharge rates for the east-west ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the post-development rates of discharge for the modified project are less than those for the original project. The area surrounding the modified project is flood- prone. Petitioner claims that the District should have reviewed the modified project for volume of runoff as well as rates of discharge. District rules require the District to consider volume in closed basins but authorize the District to consider only rates of discharge in open basins, such as the Alligator Creek basin, unless otherwise specified. The only specified exception is for the Delaney Creek basin. While some open drainage basins can be flood-prone and volume-sensitive, District rules do not distinguish between open basins that either are or are not flood- prone. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2. The exercise of agency discretion that considered rates of discharge rather than volume was consistent with applicable rules and prior agency policy. The evidence does not show any prejudice to Petitioner from the failure to consider volume. Petitioner failed to show that the amount of annual volume would increase once the modified project is completed. Aside from volume, other District rules prohibit projects that cause adverse flooding to the property of others. Rule 40D-4.301(1)(b), in relevant part, requires DOT to provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property. Rule 40D-4.302(1)(a)1, in relevant part, requires the District to consider a system’s effect on the property of others. The District measures the potential for flooding, in relevant part, by encroachment into the 100-year flood plain. District rules permit no net encroachment into the 100-year flood plain. However, the rules do allow for encroachment into the 100-year flood plain if the encroachment is offset. The modified project encroaches into 7.72 acre-feet of flood plain. As partial compensation for the loss, DOT provides 2.46 acre-feet of equivalent excavation. DOT compensates for the remaining 5.26 acre-feet of encroachment by storage modeling. Storage modeling consists of computer models that demonstrate how the ponds in the modified project will accommodate expected stormwater runoff from a 100-year, 24- hour rainfall event. The storage modeling assesses the storage capacity of the ponds on the basis of rainfall and tailwater. Tailwater is a downstream water condition that can be measured in terms of elevation, i.e., stage; and in terms of time, i.e., the hour in which a particular stage occurs. DOT's storage modeling demonstrates that the ponds in the modified project will first drain downstream and then fill from backflow that occurs as tailwater stages increase. DOT provided the storage modeling compensation in Pond 4E by designing it to take in backflow from the east-west ditch and Channel A during a 100-year storm event. The increased backflow capacity of Pond 4E provides the additional storage necessary to preclude any net encroachment into the 100-year flood plain. The storage modeling by DOT demonstrates that the modified project will not exceed the high water levels established in the Alligator Creek Study for a 100-year storm event. The storage modeling and the equivalent excavation provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property; and will not adversely affect the public health, safety, or welfare or the property of others. The storage modeling complies with the requirements of in BOR 7.7.3 for the District to review variable tailwater stages if they have a significant influence on the project design. The District considered the impact of the modified project on variable tailwater conditions based on data utilized for the Alligator Creek Study. Data utilized in the Alligator Creek Study are based on the assumption that rainfall during a 24-hour rainfall event will occur simultaneously over the entire basin. The assumption does not take into account 24-hour rainfall events that begin downstream from the modified project and increase tailwater stages before the ponds in the modified project can drain sufficiently to accommodate backflow from the increased tailwater stages. Petitioner's expert opined that the modified project could cause flooding of Commerce Center property if: the tailwater stage downstream from the modified project were higher than that assumed in the study; and a rainfall event started downstream in the Alligator Creek basin and moved across the basin toward the modified project. The expert determined that the earlier increase in tailwater stages could cause the peak runoff from the storm at approximately hour 12 to coincide with peak high tailwater stages. The expert opined that the coincidence of high water level in Channel A and the east-west ditch during the time of peak runoff from DOT's drainage system could overload Channel A and the east- west ditch and cause flooding on Commerce Center property. The opinion of Petitioner's expert was reasonable and credible as far as it goes. However, the expert opinion was not persuasive. Although the opinion was supported by underlying facts or data sufficient for admissibility, within the meaning of Section 90.705, the underlying facts and data were not persuasive. The underlying facts and data consisted of some information from two storms identified as: a three-year storm on July 15, 2001; and Tropical Storm Gabrielle on September 14, 2001. Petitioner's expert assumed a set of circumstances under which he opined that the modified project would fail but did not support the assumption with persuasive evidence. Information from the two storms relied on by the expert does not outweigh the modeling done by DOT based upon the Alligator Creek Study, the District’s 25-year design storm event, and other relevant District criteria. Petitioner did not submit a model different from that submitted by DOT and did not submit any evidence that the storage modeling presented by DOT was incorrect. The facts and data underlying the expert opinion are flawed for other reasons. The expert opinion utilizes numbers for the high tailwater mark in a 25-year design storm that were calculated in the Alligator Creek Study. Those numbers are based upon uniform rainfall across the basin. If rainfall does not occur simultaneously over the entire basin, the water draining into the basin will be less than that assumed in the Alligator Creek Study for a 25-year design storm. In a 25-year storm in which rainfall does not occur simultaneously over the entire basin, the high water level in Channel A will not be 23.28 feet, as shown in the Alligator Creek Study, but will be some unknown lesser elevation. If rain does not fall uniformly across the entire basin, the peak hour of runoff from the modified project may not occur at hour 12, and the high water level in Channel A may not occur at hour 16. The tailwater condition assumed in the Alligator Creek Study and the timing of that tailwater condition are both consistent with a simultaneous, across-the-basin rainfall event of 8-9 inches over a 24-hour period. In order to move the start of the tailwater condition, it would be necessary to recalculate the expected high tailwater conditions based upon rainfall occurring at different times throughout the basin. If a rainfall event is not uniform across the basin, the tailwater data underlying the expert opinion would decrease. The design-storm underlying the expert opinion would produce a storm surge of such magnitude that it would likely flood 75 percent of Pinellas County. The resulting storm surge or high tide would be much larger than the rainfall from a 100-year storm. Rule 40D-4.301(1)(c) requires DOT to provide reasonable assurances that the modified project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Petitioner claims that the east-west ditch is either a detention or retention pond, within the meaning of BOR 1.7.5 or 34, and that the modified project will adversely affect the pond by discharging into it. The original ALJ established the law of the case in an Order on Motion to Strike that precludes Petitioner from raising this issue. Nevertheless, Petitioner claims that the east-west ditch is either a detention or retention pond. No part of the east-west ditch, including that part widened by Petitioner in 1984, is a detention or retention pond within the meaning of BOR 1.7.5 and 34. The post-development runoff rate into the east-west ditch from the modified project will be less than both the pre-development run-off rate and that rate previously authorized in the original permit. The post-development runoff rate from the modified project will not adversely affect any storage capabilities inherent in the ditch. DOT provided reasonable assurances that the modified project will not cause adverse impacts to existing surface water surface storage and conveyance capabilities. Rule 40D-4.301(1)(e) requires DOT to provide reasonable assurances that the modified project will not adversely affect the quality of receiving waters. The modified project will utilize wet detention ponds to provide water quality treatment. BOR 5.2.a requires wet detention ponds to treat the first inch of runoff; include a minimum of 35 percent littoral zone; and discharge the system’s treatment volume in no less than five days, with no more than one-half of the total volume being discharged within 2.5 days. The wet detention ponds in the modified project provide adequate water quality treatment by allowing stormwater to be stored in each pond for five days and by allowing sediments to settle on the bottom of the pond. Vegetation will occur within the ponds and provide for the uptake of the nutrients in the water. Skimmers will retain oils and greases in the pond. The ponds in the modified project will hold more water for a longer time than those in the original permit. DOT provided reasonable assurances that the modified project will not adversely affect the quality of receiving waters in accordance with the criteria in BOR 5.2.a. Petitioner's expert opined that water quality would be less than that required by District rules if the hypothetical events described in paragraphs 42 and 44 were to occur. However, Petitioner failed to provide persuasive underlying facts or data to support the expert opinion. BOR 5.2.a requires water treatment for only the first one inch of runoff because that is where oils and greases are located. The remaining runoff during a 25-year, 24-hour storm does not require water quality treatment. Rule 40D-4.301(1)(g) requires DOT to provide reasonable assurances that the modified project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042. DOT satisfied the requirements of the rule by showing that during a 100-year storm event, the modified project will preserve off-site water levels. Rule 40D-4.301(1)(i) requires DOT to provide reasonable assurances that the modified project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. DOT satisfied the requirements of the rule. The relevant evidence provided by DOT is based on the Alligator Creek Study. The Study is accepted in the engineering field as accurate, and the parties stipulated to the accuracy and veracity of the information contained in the Study. The modified project meets the conditions for permit issuance in Rules 40D-4.301 and 40D-4.302. The proposed project is located in a right-of-way dedicated for public highway purpose as required by Rule 40D-40.302(3)(a). The modified project will not drain lands outside of the jurisdiction of DOT within the meaning of Rule 40D- 40.302(3)(b)1. The modified project will not lower the dry season groundwater table outside of the project area within the meaning of Rule 40D-40.302(3)(b)2. The modified project will not lower groundwater tables where doing so would adversely affect existing legal users. BOR 4.6.4. The wet detention ponds in the modified project will be lined with an impermeable plastic liner which will "isolate" the stormwater from the adjacent groundwater table, will prevent the lowering of that table, and will preserve the water table as is. After installation of the liners, the water table will rise for approximately 30 days and then return to the pre-liner level. The modified project will not lower the groundwater table outside of the project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Standard General Environmental Resource Permit No. 44011760.010.
Findings Of Fact The Respondent is a multi-county water management district which was created by Chapter 25270, Laws of Florida, 1949, and which operates pursuant to the provisions of Chapter 373, Florida Statutes. The District is the local sponsor for the federally-authorized "Central and Southern Florida Project for Flood Control" and as such, operates and maintains various water control facilities and impoundments in South Florida, as authorized and constructed by the Federal Government. The jurisdiction of the District encompasses 16 counties in southern and central Florida, from Marion County in the north to Monroe County in the south. Water Conservation Area 2A is one of several water conservation areas within Respondent's jurisdiction and is a part of the federally-authorized Central and Southern Florida Project for Flood Control. On April 13, June 2, August 10, September 26, October 19, and October 20, 1978, the Governing Board of the District held public hearings and workshop meetings to receive comments from the District staff and the general public concerning the proposed "draw down" or alteration of water levels in Water Conservation Area 2A. Notice of the September 26, 1978 public hearing was published in the Florida Administrative Weekly, Volume No. 4, No. 36, on September 8, 1978. By the terms of the notice, the purpose of the September 26th public hearing was: To provide interested citizens with an opportunity to express their opinions and hear testimony regarding the District's proposal to lower the water level in Conservation Area 2A, located in western Palm Beach and Broward counties. The purpose of the draw down is to con- solidate the bottom sediments so that a more flexible water schedule can be begun to preserve the natural Everglades ecology . . . . After considering information received from staff and the general public, the Governing Board entered its "Order" No. 78-12 dated October 20, 1978 containing findings of fact and conclusions of law. This "order" provided, in pertinent part: That the staff take appropriate measures to accomplish the following: A draw down from current high water levels will be initiated October 31, 1978, with the goal of reducing water levels in the central portion of the marsh to ground level by December 31 (about 11.2 feet msl). From this point, water levels shall be allowed to continue to recede to a minimum level of 9.5' by the end of May, 1979. Water levels will be allowed to rise to about 12.5' msl by October 31, 1979. That the staff take appropriate measures to regulate water levels in Conservation Area 2A between 12.5' and 9.5' msl as provided in Paragraph 1. until November of 1981. That the regulation of Conservation Area 2A be carried out in a flexible manner to insure maximum environmental benefits and that adjustments in water level fluctuations and stages may be made predicated upon the environmental response of the Conservation Area 2A ecosystem resulting from the previous year's hydroperiod. That the staff pursue such research and data collection as is necessary to fully document the conditions of the marsh throughout the three year duration of the project. No formal hearings pursuant to Section 120.57(1), Florida Statutes, were requested as a result of the aforementioned workshop, public hearings or agency action embodied in the "order" of October 20, 1978. It is undisputed that Respondent did not comply with the requirements of Section 120.54, Florida Statutes, relating to rule making in issuing its Order of October 20, 1978. Petitioner, Joe Burgess, is the owner of Hinckle's Bait and Tackle Shop on State Road 84 in Broward County, approximately 12 miles from Conservation Area 2A. Petitioner Burgess derives approximately 60 to 70 percent of his business from customers who use Conservation Area 2A for hunting, fishing, and other recreational purposes. In addition, Petitioner Burgess personally uses Conservation Area 2A for hunting and fishing. Petitioner, Keith Finlayson, is an environmentalist who uses Conservation Area 2A for recreational purposes, including fishing, bird watching, observing animals in their natural habitats and flora identification. Petitioner Finalyson uses Conservation Area 2A for recreational purposes approximately two to three times per week. Petitioner, Concerned Citizens for the Everglades, Inc., is a not-for- profit Florida corporation, some of whose members presently use Conservation Area 2A for hunting, fishing, and other recreational purposes. Other members of the organization derive their living from businesses supported by revenues obtained from the general public directly attributable to "use" of Conservation Area 2A. One of the effects of the "draw down" will be to make certain portions of Conservation Area 2A inaccessible by boat during some periods of the year, thereby curtailing recreational and other use of the those areas. Water Conservation Area 2A, and other such areas within the jurisdiction of Respondent, is surrounded by levies and various water control structures and is operated independently of other water conservation areas, which are also surrounded by levies and water control structures. All of the water conservation areas within Respondent's jurisdiction are subject to different and independent water regulation schedules. The evidence establishes that it is not feasible to apply the same regulation schedule to all water conservation areas due to differences in topography. In fact, it is anticipated that a different regulation schedule for Water Conservation Area 2A will be developed after the current three-year draw down period is concluded. Although originally scheduled to commence on November 1, 1978, the "draw down" of water levels in Conservation Area 2A was delayed as a result of legal actions taken in state courts. As a result, the District did not actually begin the "draw down" until August, 1980.
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
Findings Of Fact By application dated August 28, 1984, Petitioner sought a permit from Respondent to deepen an existing ditch on his property from a current depth of one and a half feet to a proposed depth of three feet. The ditch is eight feet wide and eight hundred and fifty feet long and extends through a wetlands area to Lake Tohopekaliga which has been classified as a Class III waterbody. Petitioner intends to dredge approximately 377 cubic yards of material waterward of the ordinary high water elevation in order to make the existing storm drainage ditch navigable. This application was received by Respondent on September 11, 1984, and was accepted as complete on November 6, 1984. On January 9, 1985, an on-site inspection was concluded by Barbara Bess supervisor of dredge and fill permitting in Respondent's Orlando district office, who thereafter prepared an appraisal report dated January 23, 1985. As expressed in her report, Bess' primary concern with this application was the potential loss of fish and wildlife habitat which would result from the loss of grasses and macro-invertebrates resulting from the proposed project. Lake Tohopekaliga is a very popular and productive sportfishing lake, and the cumulative effect of such dredging activity, if it occurred around the lake would have a severely negative impact on the lake's food chain. This would in turn have adverse consequences for sportfishing and the water quality of the lake. Since similar drainage ditches do exist around the entire lake, there is a reasonable likelihood of similar projects occurring if this one is approved. Petitioner proposes that his dredging take place during a draw-down of Lake Tohopekaliga which has already been planned, and contends that the negative impact of the proposed deepening will be minimized since the ditch will be substantially dry during the draw-down. Petitioner's contention, however, is not supported by the evidence. Testimony from Barbara Bess, who was accepted as an expert on water quality standards and the biological impact of construction projects on water quality, and testimony from Ed Moyer, fisheries biologist with the Game and Fresh Water Fish Commission, established that Petitioner's ditch may not be completely dry during the draw-down, and that the proposed deepening will increase boat traffic due to the ditch's navigability, thereby reducing vegetation and harming the food chain in the immediate area of the ditch. The cumulative effect of similar projects occurring, even during the draw-down, will be negative for sportfishing and the water quality of the lake. Respondent issued its Intent to Deny on January 25,1985, in response to which Petitioner timely sought a hearing. The parties were allowed to submit proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's permit application. DONE and ENTERED this 23rd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1985. COPIES FURNISHED: Ross Gwin 1731 Juniper Circle St. Cloud, Florida 32769 Ron Cray 1731 Juniper Circle St. Cloud, Florida 32769 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: Quality of Service The prime concern and complaint of the customers who testified at the hearing was the quality of water they receive in their homes. The water was described as containing high levels of chlorine, to the extent that it smells of chlorine and, on occasion, fades or bleaches colored clothing when washed. At times, the water is cloudy or rusty in appearance and contains debris, such as sand, dirt or pebbles. One witness testified that clothing had been stained by rust in the wash water. Samples of water received into evidence illustrate the muddy appearance of the water, with debris visible. At times, the water is colored with algae, resulting in greenish-colored ice cubes. Broken appliances are attributed by several customers to have resulted from the debris contained in the water. Customers have experienced low water pressure in their homes and water outages for up to ten hours without prior notice from the petitioner. It was not established whether such water outages were the result of routine maintenance or emergency repairs. Several witnesses found it difficult to contact petitioner regarding billing errors and that slow or no responses to their inquiries were received. The billing errors included mailing the bill to the wrong address and the amounts of the bill. One such latter complaint is presently before the consumer affairs division of the Public Service Commission. The only complaints regarding sewer service were that there is often an unacceptable odor and that "there was sewage boiling out on my street two days in a row." (T.51) Notice of the hearing in this cause was mailed to all customers on February 25, 1981. The rate case documents were delivered by an employee of petitioner to the Clerk's office of the Lake County County Commission in the Lake County Courthouse on February 17, 1981. Water samples are taken on a monthly basis from each of the petitioner's plants. These samples are then analyzed for water quality in a state-controlled laboratory and the results are then sent to the Florida Department of Environmental Regulation and the local Health Department. Personnel from these regulatory bodies occasionally visit the plants and make independent tests. None of the petitioner's water systems or its sewer system are presently under citation from any regulatory body. A citation existing prior to the petitioner's acquisition of the Palms Mobile Home Park water system has been removed. Prior to the hearing, Petitioner's vice-president of operations, Charles Sweat, had not received any complaints from customers regarding the level of water pressure in their homes. With regard to notification of customers of water outages, it is the petitioner's policy to give a twenty-four hour written notice to all customers for planned, scheduled maintenance which would require the water to be off for any length of time. When accidents or emergencies occur, petitioner devotes its concentration to the restoration of service and advance notice is not possible. The Department of Environmental Regulation has minimum requirements relating to the amount of chlorine which must be added to a water system. There are no maximum requirements. One of the Fern Terrace water samples received into evidence at the hearing was very brown in appearance. On the day upon which that sample was taken, the system had experienced a malfunction of the air compressor, causing all the water to go out of the system. The brown-colored water was the result of debris and rust that had built up in the bottom of the tank. The inside of the tanks are cleaned on a periodic basis, and that particular tank had been cleaned approximately six months ago. Petitioner does have a main flushing program, and each system is flushed on a regular basis, the frequency of which is dependent upon the type of pipeline used and the quality of the water in the system. A flushing report is maintained to record the appearance of the water at the beginning and at the end of the flushing, the chlorine residual in the water, the amount of time taken and the estimated gallons flushed out of the line. No explanation was provided for another muddy water sample received into evidence. Rate Setting for the Morningview Sewer System The Morningview sewer system is capable of supporting a maximum of forty-two (42) residential connections. At the end of the 1979 test year, the system had only twenty-six (26) connections. The respondent, Public Service Commission seeks to impute sewer revenues from the unsold lots in the Morningview subdivision so as to recognize the plant capacity of 42 connections. It was undisputed that the sewer plant was 100 percent used and useful and no adjustment was made to this figure. Since petitioner's acquisition of the Morningview sewer system, it has experienced an average annual growth rate of 13.16 percent. During the last year and one-quarter, the growth rate has been approximately 25 percent. The number of connections has increased from 19 in 1976 to the present 30. Eleven connections have been added in a little over four years. The revenues from the imputed connections were obviously not collected during the test year, nor were they collected in 1980. It would take approximately three years to collect the imputed revenues at the current rate of growth. The Public Service Commission has not adopted a rule allowing this imputation method of ratesetting. The pro forma approach has been used in setting rates for a new utility or development, and has been described as an "innovative" method of adjusting used and useful plant. Expenses in addition to increased costs for electrical power and chlorine necessitated by the increased number of connections were not considered by the Public Service Commission to be material. Additional connections to the sewer system would involve some additional billing and service costs, though the difference in fixed costs for serving 42 connections and 26 connections is minimal.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that no adverse consequences be imposed upon the petitioner in its application for rate increases as a result of the quality of water and sewer service provided to its customers in Lake County, Florida. It is further RECOMMENDED that revenues not be imputed for 42 connections to the Morningview sewer system. Respectfully submitted and entered this 24th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Public Service Commission The Fletcher Building 101 East Gaines Street Tallahassee, Florida 32301 Anna Marie Norman 1219 LaSalida Way Leesburg, Florida 32748 Marilyn Smith 2924 North Porto Bello Avenue Leesburg, Florida 32748 Patti L. Wolf 2922 Alta Street Leesburg, Florida 32748 Anna P. Cowin 2913 North Porto Bello Avenue Leesburg, Florida 32748 Pam Angelillo 2922 Cocovia Way Leesburg, Florida 32748
The Issue The issue for determination in this case is whether proposed rules 62-40.410(3) and 62-40.474, in whole or in part, are invalid exercises of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes (2005).1
Findings Of Fact The Parties AFCD is a non-profit association representing 52 companies, including land developers, property owners, and other professionals involved in the planning, design, licensing, construction, and marketing of master-planned communities with multiple land uses, including residential uses, throughout the State of Florida. AFCD was established for the purpose of advancing the commercial and residential land development projects of its members, including informing state government policy makers and regulators about current issues affecting the community development industry. FHBA is a trade association working to promote and protect Florida’s residential construction industry. FHBA’s activities on behalf of its members include monitoring public policy and working with state agencies on environmental and land use regulations affecting the residential construction industry. The Environmental Groups are not-for-profit corporations whose principle activities include advocacy for the protection of Florida's fish and wildlife. They have thousands of members who live near and use Florida waters for recreational, educational and other purposes. SFWMD and SJRWMD are regional agencies that are authorized by statute to make water reservations within their respective jurisdictions. Any rule they adopt to create a water reservation will be subject to review by DEP to determine whether it is consistent with the proposed rule. The Proposed Rules On December 20, 2002, DEP published a Notice of Proposed Rulemaking in the F.A.W. for various provisions of the WRIR. Notices of changes were also published in the F.A.W. on February 21, 2003, August 15, 2003, and February 27, 2004. The version of the rules at issue in this case was published in the August 15, 2003, issue of the F.A.W. DEP held nine rule development workshops around the State and one public rule adoption hearing for the proposed rules. DEP solicited comments from the public and stakeholders, including local governments, regional water supply authorities, water utility organizations and water management districts throughout the rulemaking process. Proposed rule 62-40.474 provides as follows: The governing board or the department, by rule, may reserve water from use by permit applicants, pursuant to section 373.223(4), F.S., in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review at least every five years, and revised if necessary in light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest. Reservations may be used for the protection of fish and wildlife to: Aid in a recovery or prevention strategy for a water resource with an established minimum flow or level; Aid in the restoration of natural systems which provide fish and wildlife habitat; Protect flows or levels that support fish and wildlife before harm occurs; Protect fish and wildlife within an Outstanding Florida Water, an Aquatic Preserve, a state park, or other publicly owned conservation land with significant ecological value; or Prevent withdrawals in any other circumstance required to protect fish and wildlife. Reservations may be used for the protection of public health and safety to: Prevent sinkhole formation; Prevent or decrease saltwater intrusion; Prevent the movement or withdrawal of groundwater pollutants; or Prevent withdrawals in any other circumstance required to protect public health and safety. Reservations shall, to the extent practical, clearly describe the location, quantity, timing, and distribution of the water reserved. Reservations can be adopted prospectively for water quantities anticipated to be made available. When water is reserved prospectively, the reservation rule shall state when the quantities are anticipated to become available and how the reserved quantities will be adjusted if the actual water made available is different than the quantity anticipated. The District shall conduct an independent scientific peer review of all scientific or technical data, methodologies, and models, including all scientific and technical assumptions employed in each model, used to establish a reservation if the District determines such a review is needed. As part of its determination of the necessity of conducting a peer review, the District shall consider whether a substantially affected person has requested such a review. Specific Authority 373.026(7), 373.043, 403.036(1)(d), 373.171, FS. Law Implemented 373.023, 373.026, 373.036(1)(d), 373.042, 373.046, 373.103, 373.106, 373.171, 373.175, 373.1961, 373.223, 373.246, 373.418, 373.451, 373.453, 403.0891, FS. History - New The proposed change to rule 62-40.410(3), indicated by underscoring, provides: Water may be reserved from permit use in such locations and quantities, and for such seasons of the year, as is required for the protection of fish and wildlife or the public health or safety. Such reservations shall be subject to periodic review and revision in light of changed conditions. However, all presently existing legal users of water shall be protected so long as such use is not contrary to the public interest. Reservations shall be established in accordance with section 62-40.474, F.A.C. Specific Authority 373.026(7), 373.043, 373.036(1)(d), 373.171, FS. Law Implemented 373.023, 373.026, 373.036(1)(d), 373.042, 373.0421, 373.103, 373.171, 373.175, 373.1961, 373.223, 373.233, 373.246, 373.250, 403.064, 403.0891, FS. History -- New 7-20-95, Amended. The validity of the proposed change to rule 62-40.410(3) is derivative of, and dependent on, the validity of proposed rule 62-40.474. Therefore, the discussion that follows will focus on proposed rule 62-40.474, and references to "the proposed rule" will mean rule 62-40.474. Water Reservations Section 373.223(4), Florida Statutes, provides: The governing board or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest. Water reservations are important for what they enable--the protection of fish and wildlife or the public health and safety, but they are also important for what they preclude-- use of the reserved water by any water use permit applicant. DEP does not believe the challenged rule is necessary to enable the water management districts to make reservations of water. DEP's purpose in enacting the rule is to provide goals, objectives, and guidance to the water management districts regarding water reservations. The proposed rule is intended to provide examples of "the types of situations that may be appropriate for the use of reservations." The proposed rule does not establish a water reservation. Each reservation of water must be accomplished through the adoption of a rule by a water management district or by DEP. There has been only one water reservation ever made pursuant to Section 373.223(4), Florida Statutes. It was made by SJRWMD in 1994 and is codified in Florida Administrative Code Rule 40C-2.302: The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. This reservation is for an average flow of 35 cubic feet per second (23 million gallons per day) representing approximately forty-five percent (45%) of the calculated historic flow of surface water through Paynes Creek and Camps Canal. Section 373.223(4), Florida Statutes, was part of the original Florida Water Resources Act of 1972 ("the 1972 Act"). Ch. 72-299, § 3, Laws of Fla. The wording of the subsection is unchanged since its enactment in 1972. Much of the 1972 Act was derived, verbatim, from A Model Water Code, drafted at the University of Florida College of Law between 1967 and 1971 by Dean Frank Maloney, Professor Richard Ausness, and Professor J. Scott Morris. Maloney, et al., A Model Water Code, Univ. of Fla. Press (1971). However, the Legislature did not adopt the exact wording of the water reservation provision that was offered in A Model Water Code. In A Model Water Code, water was to be reserved when "required to implement a provision of the State Water Plan." Id. at 21, 181. The State Water Plan was composed of a State Water Use Plan and a State Water Quality Plan. Id. at 9. The following commentary accompanied the water reservation provision in A Model Water Code: This provision is designed to integrate the operation of the permit system with the State Water Use Plan and State Water Quality Plan. Under this subsection, the governing board by regulation may set aside a fixed quantity of water; no future permit application can be made for water reserved in this fashion. [This provision] would be of particular value in connection with the maintenance of water quality standards, as it would provide a margin of safety during periods of low flow. Id. at 181. The State Water Plan was to address many subjects, including minimum flows and levels, water supply development, water quality improvement, environmental protection, conservation and recreation. By providing that water could be reserved when "required to implement a provision of the State Water Plan," A Model Water Code contemplated that water could be reserved to address any of these subjects. Although the 1972 Legislature provided for a comprehensive plan similar to the State Water Plan, it did not make reference to the plan in Section 373.223(4), Florida Statutes (1972). The reason the Legislature chose not to use the wording "when required to implement a provision of the State Water Plan" in A Model Water Code but, instead chose to use "when required to protect fish and wildlife or the public health and safety" in Section 373.223(4), Florida Statutes, is not explained in any exhibit in the record or in any primary or secondary source cited in the briefs of the parties. It remains a matter of speculation. Petitioners believe that it is clear from the Legislature's choice of words that it intended to strictly limit the circumstances in which a reservation would be used. Petitioners believe that other, more specific findings about what the 1972 Legislature would have considered an inappropriate use of a water reservation can be inferred from the Legislature's decision not to use the wording proposed in A Model Water Code. After considerable thought and review of the commentary in A Model Water Code and the provisions of the 1972 Act, it is concluded that there is an insufficient basis to make findings of fact regarding the 1972 Legislature's intent in not using the exact wording from A Model Water Code in Section 373.223(4), Florida Statutes. Petitioners' theory of the Legislature's intent is plausible, but is not the only plausible theory. The only certainty is that, from the alternatives considered by the 1972 Legislature, it chose to express the purposes for which water can be reserved as "protection of fish and wildlife or the public health and safety." There are three other references in Chapter 373, Florida Statutes, to water reservations. None were a part of the 1972 Act. Section 373.0361(2)(a)2., Florida Statutes, directs that water reservations be taken into account in proposals for alternative water supply projects. Section 373.0361(2)(h), Florida Statutes, requires regional water supply plans of the water management districts to include a listing of "Reservations adopted by rule pursuant to s. 373.223(4) within each planning region." Section 373.470(3)(c), Florida Statutes, refers to the use of water reservations in conjunction with restoration of the Everglades. Much of the argument and testimony in this case addressed Petitioners' contention that the proposed rule's provision for the use of water reservations "to aid in the restoration of natural systems" went far beyond "protection of fish and wildlife," the purpose stated in Section 373.223(4), Florida Statutes. References were made to the dictionary definitions of "protection" and "restoration" and all the expert witnesses offered opinions about their meanings. The term "protection" is not defined in Chapter 373, Florida Statutes, or in any DEP rule. The dictionary meaning of "protect" is to shield or defend against danger or injury; to cover or shield something from exposure, injury or destruction; to maintain the status or integrity of something; to guard. "Protection" is the act of protecting or the state of being protected. See, e.g., The New Lexicon Webster’s Dictionary of the English Language, 803 (1988); Merriam Webster’s Collegiate Dictionary, 938 10th Ed. (1996). DEP does not interpret the phrase "protection of fish and wildlife" in Section 373.223(4), Florida Statutes, as limited to keeping alive only those specific fish and wildlife organisms existing at the time a water reservation is established. DEP witness Janet Llewellyn testified that DEP has consistently interpreted this phrase to mean ensuring a healthy and sustainable, native fish and wildlife community; one that can remain healthy and viable through natural cycles of drought, flood, and population variation. Petitioners' experts did not dispute DEP's interpretation of "protection of fish and wildlife" to include the concepts of "native" species and species "communities." Petitioners contend, however, that the statute should be interpreted to apply only to existing, native fish and wildlife communities. The term "restore" is not defined in Chapter 373, Florida Statutes, or in any DEP rule. The dictionary meaning of "restore" is to put back or bring back into an original or former state or condition. "Restoration" is the act of restoring or the condition of being restored. See, e.g., The New Lexicon Webster’s Dictionary of the English Language, 834 (1988); Merriam Webster’s Collegiate Dictionary, 998 10th Ed. (1996). DEP intends the word "restoration," as used in the proposed rule, to have its common meaning. All the experts who testified in this case acknowledged that "protection" and "restoration" are different concepts and they each articulated an understanding of the meaning of these terms that was consistent with the dictionary meanings of the terms. The experts differed, however, in how they applied the terms "protection" and "restoration" to examples of environmental improvement activities. In general, Petitioners' experts thought a relatively clear line could be drawn between protection and restoration activities. The experts presented by DEP and Audubon, on the other hand, stated that the concepts are often overlapping and are not mutually exclusive. Petitioners' experts believe that when a project will have results that include more than maintenance of the current state, such as increasing numbers of organisms, increasing diversity, increasing habitat, or improving water quality, then the activity is no longer "protection," and becomes "restoration." In contrast, the DEP and Audubon experts believe that environmental conditions must sometimes be restored in order to protect existing fish and wildlife. DEP agrees that protection is not the same thing as restoration. It is DEP's position that the proposed rule cannot authorize, for example, the reservation of water for restoration of habitat or ground or surface water levels, except to the "extent needed for the protection of fish and wildlife or public health and safety." DEP agrees that a water reservation cannot be used "merely because restoration is desired." Ms. Llewellyn explained further: When a water management district initiates rulemaking to adopt a reservation, if the reservation is in aid of any restoration, the district will have to show that the aid to such restoration is no more than necessary to protect fish and wildlife or public health and safety. Ms. Llewellyn gave examples of how a reservation could be properly used as part of a restoration project to protect fish and wildlife. She stated that an estuary that previously supported a healthy population of oysters could be adversely affected by reduced inflows of fresh water due to diversions of water from the drainage basin which have increased the salinity of the water in the estuary. The water management district might construct a reservoir to store water in the rainy season for release in the dry season to keep salinities in the estuary at the proper level to protect the health of oysters. In this example, it is inferred that Ms. Llewellyn intended to convey that the release of reservoir water in the dry season would constitute restoration of a previously existing volume of freshwater inflow to the estuary, or restoration of the salinity level that would exist if the diversions had not occurred. The more persuasive evidence in the record supports a finding that, in the context of the comprehensive water resources program established in Chapter 373, Florida Statutes, protection and restoration are not mutually exclusive terms and it is possible to take action that meets the dictionary definition of restoration, but which does no more than protect (ensure the health and sustainability of) existing fish and wildlife communities. A restoration project could go beyond "protection" of fish and wildlife if, rather than merely restoring an environmental condition required for the health and sustainability of existing fish and wildlife communities, the project resulted in significantly larger fish and wildlife communities. Whether water reserved to restore an environmental condition is required for the protection of fish and wildlife depends on the particular circumstances involved.
Findings Of Fact Petitioner owns a single family residence on a lot (Lot 2) abutting Lake Buffum in Polk County, Florida. This property has a 60 foot frontage on the lake. Petitioner subsequently purchased and now owns an adjacent lot (Lot 3) with a lake front frontage of approximately 73 feet. Petitioner has placed a dock on the westerly edge of Lot 2 from which he suspends and lowers a power boat to the surface of Lake Buffum. Lot 3 is westerly of Lot 2. Lake Buffum is a class III water body which classification provides for management for recreation; and propagation and maintenance of a healthy, well- balanced population of fish and wildlife. Petitioner was cited for violation of Section 369.20, Florida Statutes, by spraying herbicide on aquatic plants without a permit. He subsequently applied for a permit to control aquatic plants in front of his property and was issued a permit allowing him to control an access corridor to his property 50 feet wide. Petitioner here seeks an access corridor 60 feet wide. When Petitioner was issued his permit, the plat showing his dock in the center of the 50 foot access corridor was attached. Petitioner desired to clear aquatic plants on the western side of his dock as there is deeper water on that side of the dock to permit access to the dock with his boat. This is due to the angle of the shore line. The plat showing the dock in the middle of the 50 foot corridor obviously caused some confusion on the part of the Petitioner as the approach to his hoist on the dock is parallel to the shoreline. Accordingly, clear water to approach the dock from the west is what Petitioner needs to dock his boat. The permit granted is for a 50 foot corridor without specifying where at right angles to the coast line the corridor should be placed. Accordingly, if desired, Petitioner could clear a corridor starting at the western side of his dock and extending 50 feet to the west. In coordination with the Florida Game, Freshwater Fish and Wildlife Service, the Respondent has adopted a general policy of granting a permit to clear aquatic plants on waterfront property with a corridor of one-half width of the lot fronting the lake but limited to 50 feet for lots of 100 feet width and greater. Since Petitioner has approximately 133 feet of shoreline, he was granted a permit to control aquatic plants in a 50 foot corridor. This general policy is not absolute, but varies with the quantity of aquatic plants on a particular lake and whether the permit is desired for the use of the general public, such as a public boat ramp provided by a county or municipality. The amount of aquatic plants most beneficial to the propagation of fish and wildlife on lakes is between 40% and 70% coverage of the lakes. On the lakes with more than 70% coverage, Respondent may grant a 100 foot corridor in which the upland property owner is issued a permit to control aquatic plants. Lake Buffum is a sparsely vegetated lake with a coverage varying between 1.8% and 4%. Although the property around the lake is sparsely developed, an extra 10 feet of aquatic plant control would have some adverse effect in this lake which is far below the average coverage. More importantly, however, is the cumulative impact of granting Petitioner a 60 foot corridor which would require the granting of similar corridors to all other applicants on Lake Buffum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dan L. Moody's petition to be granted a permit to clear a 60 foot corridor of aquatic plants below the high water line at his property on Lake Buffum be denied. DONE AND ENTERED this 12th day of March, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1993. COPIES FURNISHED: Dan D. Moody, Esquire 945 East Broadway Fort Meade, Florida 33841 Nancy L. Harvey, Esquire Nona Schaffner, Esquire 3900 Commonwealth Boulevard MS #35 Tallahassee, Florida 32399-3000 Donald Duden, Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard MS #10 Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard MS #10 Tallahassee, Florida 32399-3000
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
