The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
The Issue The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18. The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat. David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway. The Trustees own the lands lying below the mean high water line of the Matanzas River. The Permit and Lease Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property. Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit. The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls, it is apparent that this was for the purpose of showing interior areas, such as the slips. Although difficult to see, one drawing indicates a doorway on the lower level. The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes. On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property. General Condition (a) of the permit states: All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit. On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the Department permit, which was incorporated into and made a part of the lease.2/ Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence." Paragraph 7 of the lease states in pertinent part: This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining . . . the Lessor's written authorization in the form of a modified lease. Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor." The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71): "Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity. The lease was issued for a term of five years. It expired on January 12, 2009. Enforcement History Respondents began construction of the dock and boathouse in February 2004. A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint. Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure. Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit. Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place." Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection. Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place. Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance. The structure shown in the photographs taken on July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip. The Department did not communicate with Respondents about the July 9, 2004, inspection. The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance." General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations." Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project. On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done. Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection. The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted." Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed." Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse. Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable. It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted. The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure. In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows. On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.” Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view. Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit. On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp. During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.” Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings. On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category - Let's talk." However, the record does not include any explanation of this handwritten comment. Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent. On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower. In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks." The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit. Respondents did not submit an as-built to reflect the final construction of the dock and boathouse. The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent. Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent. Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent. Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting. On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station. Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear. There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait. Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level). The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance Respondents claim that they relied on the Department's representations following the Department's inspections of the construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit. The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent. Respondents presented no evidence to show that similar boathouses have been authorized by Department permit. David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered. The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans. David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department. Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance. Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010.
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue Who are the owners of the two dams in question? Are there structural deficiencies in the two dams that render them unsafe, and what repairs and improvements should be required? What are the steps and methods by which the deficiencies should be corrected, and who should make the corrections? Is the breaching of the two dams, as urged by the Northwest Florida Water Management District, an appropriate remedy?
Findings Of Fact The Complainant, Northwest Florida Water Management District (hereinafter "District"), is a public agency authorized by and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40A, Florida Administrative Code, with it headquarters located in Gadsden County, Florida. In approximately 1962, two earthen dams were constructed in what is known as the Dogwood Lakes Subdivision located in Holmes County, Florida (Petitioner's Exhibit 11 at p. 5; Esry, T at 230). An inspection in 1983 revealed that there were serious deficiencies in the maintenance of these dams and their appurtenances. The District has undertaken various title searches prior to the hearing to determine ownership of the two dams; however, ownership of the dams could not be determined due to conflicting claims. The District noticed all those persons who had an ownership interest or potential interest in the dams. The District also notified Holmes County and the Dogwood Lakes Homeowners Association (Recio, T 61-62). Respondent, The Dogwood Lakes Homeowner's Association, is a voluntary association of property owners in the Dogwood Lakes subdivision. The Association does not claim title ownership to either of the dams or the lakes; however, the Association claims a beneficial interest in the impoundments, which its members use for recreational purposes, and an interest in maintaining the lakes, which substantially enhance the value of the property within the Dogwood Lakes subdivision, particularly the property surrounding the two lakes. The dams, lakes, and property surrounding the lakes are within Holmes County, Florida (hereinafter "County"), which was noticed and made a Respondent in this case. Holmes County has expressed concern that removal of the dam could result in lower tax assessments for the properties surrounding the lakes (see, e.g., County's response to Amended Administrative Complaint). The road running along the top of the dam, Sherwood Drive, has not been dedicated to or accepted by the County for maintenance. The County does not have an ownership interest in the dam. Deeds received in evidence as Petitioner's Exhibits 1 and 2 reveal that Respondent, Ben Campen, may own the bottom of all existing lakes, and easements for roadways, water lines, utilities and other ingress and egress to the golf courses, lakes, ponds and waterways (Petitioner's Exhibits 1 and 2). Petitioner's Composite Exhibit 3 reveals that Respondent, John Maitland, owns a significant portion of the undeveloped lands, including the northerly right-of-way line of Sherwood Drive and Parcel 10, which includes much of dam number 1. The evidence further shows that Respondent, Maitland, owns Parcel 17, which includes the westerly edge of dam number 2 (Petitioner's Exhibit 3). Respondent, O'Sullivan, admitted in Answers to Interrogatories that he owns the two lake bottoms at Dogwood Lakes (Petitioner's Exhibit 4, answer to interrogatory numbers 2 and 12). Respondents, Ben Campen, Jack Maitland, and Kevin O'Sullivan, have ownership claims to all or portions of the two dams. While the County and the Association have interests sufficient to permit them to be heard in this matter, they do not have any ownership interests. No other persons have asserted claims of ownership of the dams (Recio T, 65-66 and 68). The two dams, designated dam number 1 and dam number 2, were designed in 1960 and 1961 by the Soil and Conservation Services as low-risk facilities for agricultural purposes which assumes no downstream hazards and only agricultural runoff from the watershed (Musgrove, T at 93 and 95; Esry, T at 229-230; Petitioner's Exhibit 10). Agricultural runoff coefficients were used in designing the dams based upon the agricultural use of the surrounding property (Esry T at 220 & 238-39), and the dams were built prior to significant development around the lakes or below the dams. Dam number 1, the larger of the two dams, is constructed of earthen materials and is 800 feet long, 29.5 feet high, 21 feet wide at the crest, and 190 feet wide at the base (Musgrove, T 96-97). Dam number 1 impounds a 49-acre lake (Petitioner's Exhibit 11 at page 14), which lake contains 372 acre feet of water impounded at the normal lake level and 468 acre feet at flood storage capacity (Musgrove, T at 116). The principal spillway for dam number 1 consisted of an 18-inch corrugated metal pipe (CMP) riser with a 15-inch CMP barrel running through the base of the dam which discharged at the back slope (Musgrove T 97; Petitioner's Exhibit 11 at p. 16). The initial design of the principal spillway called for asphalt-coated pipe to be used, but little or no coating was used on the pipe (Petitioner's Exhibit 11 at p. 16). The emergency spillway for dam number 1 is a natural outlet designed to provide flow over a 10 0-foot wide area along the northeastern side of impoundment for dam number 1 (Petitioner's Exhibit 11 at p. 20; Musgrove, T at 98). Sherwood Drive, the major access road through the Dogwood Lakes subdivision, runs the entire length of dam number 1 (Musgrove, T at 99). Local traffic, including school buses, use this road. The smaller of the two dams, dam number 2, is 700 feet long, 21.5 feet high, 14 feet wide at the crest, and 150 feet wide at the base (Musgrove, T at 97). Dam number 2 impounds an 18-acre lake (Petitioner's Exhibit 11 at p. 23) which contains 82 acre feet of water at the normal pool level and 109 acre feet of water at the flood storage level (Musgrove, T at 116). The principal spillway for dam number 2 consists of an 18-inch CMP riser and a 12-inch CMP barrel. Dam number 2 does not have an emergency spillway but discharges excess water through a canal, which connects lake number 2 with lake number 1, and out its emergency spillway (Musgrove, T at 98; Petitioner's Exhibit 11 at p. 26). The principal spillway components for both dams (riser and discharge barrel) had a design-useful life of 20 to 25 years (Esry T at 230). Over the years, neither dam nor its control mechanisms have been maintained properly. Both dams have trees and other woody vegetation growing on the front and back slopes of the dams (Esry T at 237, 241, and 244; Musgrove T at 125 and 133) The development of the Dogwood Lakes subdivision, including construction of houses, streets, and a golf course around the subject lakes, changed the nature of the land use from agricultural to residential (Musgrove T at 25 and 98). There are three permanent residences located below and within the flood plain of dam number 1 (Musgrove T at 114, Petitioner's Exhibit 13; Carolyn Whitehurst, T at 254-255; Melvin Rhodes T 261-263). Melvin Rhodes lives approximately 800 feet downstream of dam number 1 and resides there on a permanent basis with his family, including his two young children, ages 2 and 4 (Rhodes, T at 261-262). In approximately September of 1982, the principal spillway for dam number 1 failed causing an uncontrolled release of water. Respondent, O'Sullivan, attempted to repair the spillway mechanism but in the process, irreparably damaged the principal spillway (Musgrove, T at 120). The discharge barrel in dam number 1 was plugged to prevent a continued, uncontrolled release of water (Musgrove, T at 105-106). Plugging the discharge barrel caused the couplings of the corrugated pipe to blow out, creating multiple leaks deep in the dam (Musgrove, T at 107-109). The principal spillway for dam number 1 is no longer operational as a result of failures and unpermitted attempts to repair the spillway in 1982 (Musgrove T at 105-106). Respondent, O'Sullivan, subsequently attempted unpermitted repairs to the principal spillway by excavating down to and crushing the discharge barrel, removing the riser pipe and refilling the entire area with earth materials covered with a layer of bentonite, a low permeability clay or water sealant, to prevent any further flow through the discharge barrel (Musgrove, T 122-123). The blowout in the principal spillway for dam number 1 further caused the out fall of the discharge barrel to fall 5 feet from its originally designed and constructed height (invert elevation) (Musgrove T at 122). The blowout of the discharge barrel has resulted in erosion on the back slope, water seepage through the dam, and infiltration of the earthen embankment materials through the discharge barrel (Musgrove, T 126-128). The emergency spillway for dam number 1 has not been maintained and has trees and other growth which restricts the flow of water (Petitioner's Exhibit 11 at p. 20). The principal spillway for dam number 2 is also inoperable because it is plugged with debris and material, including concrete (Musgrove, T at 138). Water seepage through dam number 2 has also been noted in its back slope (Musgrove, T 138-139). In March, 1983, the District was called out to the Dogwood Lakes subdivision because of extremely high water within the two lakes which has inundated yards and caused septic tanks to back up (Musgrove, T 104-106). The high-water levels had been caused by the plugging and damage to the two principal spillways of both dams (Musgrove T 104-105). Attempts by the District to have Respondent, O'Sullivan, submit a permit application to make the necessary repairs was unsuccessful (Petitioner's Exhibit 11 at p. 11-12). The District made emergency repairs to dam number 2 during the period of May 4 through 25, 1983, by installing eight-inch siphons to draw down the water levels (Petitioner's Exhibit 11 at p. 12-13). In June and July, 1983, the District made emergency repairs to dam number 1 by installing 2 eight-inch PVC pipes through the dam, across and under Sherwood Drive, to provide a temporary spillway to control the lake level (Petitioner's Exhibit 11 at page 13). On October 10, 1983, District officials again met with directors of the Association in Marianna, Florida, to discuss the situation involving the dams and to make recommendations to the Association on how to repair the dams (Recio, T 64-66; Petitioner's Exhibit 7). On August 8, 1984, officials of the District again met at the Dogwood Lakes clubhouse with directors of the Association to discuss the continuing problems of the lakes and dams and to arrive at some solution thereto (Petitioner's Exhibit 11 at p. 13; Petitioner's Exhibit 6; Recio T 63-64). While no permanent solution was reached at the August 1984 meeting, the Association's directors agreed that a control breach in dam number 2 was necessary as a temporary measure to relieve flood pressure on the dam. The control breach was constructed in September of 1984 (Recio, T at 60; Petitioner's Exhibit 11 at p. 13-14; Petitioner's Exhibit 6; Musgrove, T at 135). The temporary measures, including the control breach in the dam number 2 and the 2 eight-inch PVC pipes constructed under dam number 1, are not permanent in nature and do not obviate the need to repair either dam (Musgrove, T 143- 144) The District follows the engineering standards set forth in the National Dam Safety Standards Program, as promulgated by the Army Corps of Engineers in conjunction with Public Law 92-367. These standards are also followed by the Bureau of Reclamation, the Federal Emergency Management Agency (FEMA) and the Soil Conservation Service (Musgrove, T 99-104). The standards used by the District also establish hazard criteria, promulgated by the Federal Dam Safety Program, which establishes hazard classes for the various different sizes of dams and incorporates acceptable hydraulics and spillway capacities for dams. These standards are found in the reference book, Design of Small Dams by the Bureau of Reclamation, Department of Interior, Third Edition, as well as the textbook, Safety of Small Dams, compiled by the American Society of Civil Engineers (Musgrove, T 102-104). The application of these standards was supported by the expert testimony of the District's experts, who established that these standards are reasonable. The principal spillways for both dams are undersized, according to these standards. Dam number 1 does not comply with the applicable engineering and design standards for dam safety and is a threat to public health, safety and welfare because: The principal spillway is totally inoperable; Damage has occurred to the principal spillway barrel via the plugging of the pipe and the erosion and water seepage along the backslope, including the disjointing of the pipes; The discharge barrel downstream of the principal spillway has been crushed; The principal spillway pipe has outlived its design-useful life; The principal spillway is undersized for the present runoff conditions of the developed watershed; There is a significant growth of trees on the front and backslopes; and Lack of maintenance on the emergency spillway has resulted in the growth of woody vegetation and trees which constricts the normal emergency outflow; Under the applicable design and safety criteria, dam number 2 is unsafe and presents a risk to the health, safety and welfare of the public because: The principal spillway has been plugged and closed off; There is no emergency spillway; Trees are growing on the backslopes; There has been limited or no maintenance of the dam; The components of the principal spillway have exceeded their design-useful life; and Water seepage is occurring in the dam. In order to bring dams 1 and 2 up to proper standards and render them safe, the following must be undertaken: The existing principal spillway components for dam number 1 must be removed and replaced with a 120- inch CMP riser and 60-inch CMP barrel; alternatively The owners or interested persons must submit engineering design specifications to complete remedial repairs and alterations of the dam and its appurtenant works to the Districts; The trees and woody vegetation, including all root systems, must be properly removed from the front and back slopes of both dams; All root systems must be fully removed, voids refilled with like materials and properly compacted. Side slopes of the dam should be graded to design conditions (3:1 slopes) and all disturbed areas must be mulched and grassed for future maintenance; The principal spillway on dam number 2 must be removed and replaced with a 36 inch CMP riser and 24 inch CMP; An emergency spillway must be constructed on the southern end of dam number 2 equal to the hydraulic capacity of the present "control breach"; The temporary spillway pipes and excavated areas in dam number 1 and the control breach in dam number 2 must be removed and/or refilled and the embankments restored to properly designed conditions; The proper channel hydraulics for the diversion channel must be restored by excavating and removing soil and vegetated materials. The side slopes of the channel should then be properly slopped and grassed to prevent erosion; and A complete analysis of hazardous conditions below each dam must be provided to determine if remedial measures are necessary below the dams to limit any impact to structures or facilities. The District has estimated that the total cost of bringing the two structures into compliance is approximately $115,000.00 (Petitioner's Exhibit 11 at page 32-33). The upgraded spillway sizes are predicated upon restoring the dams and lakes to their original design height and lake levels (Laird, T 221). The spillway designs and specifications could be down sized, depending upon other design criteria, such as lower lake levels (Laird, T 224-225). Such modifications of the original specifications would have to be considered and approved by the District in the application process. A catastrophic failure of either dam would most likely occur at existing principal spillways due to the existing deterioration and damage to both the dams and pipes, including the piping conditions, the age of the pipe and corrosion thereof (Musgrove, T 114 and 142). A catastrophic failure in dam number 1 would result in the inundation of the three residences below that dam, with at least 1 to 3 feet of water, lasting approximately 6 hours (Laird, T 199-00). The intensity of this inundation was based upon minimal rainfall conditions impacting the existing rivers and creeks. In actuality, the likelihood of a catastrophic failure with low water levels in the creeks and rivers below the dams is unlikely. It is more reasonable to expect the dams to fail when there has been substantial local rainfall and the rivers and creeks are at or near flood stage. The water level and duration of flooding under less favorable assumptions would be devastating downstream.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED as follows: Respondents, Maitland, Campen, and O'Sullivan, who have ownership interests in the dams or parts thereof, be ordered to submit an application to the District within 30 days of the date of the Final Order for the repair of the subject dams in accordance with applicable safety design and engineering standards for dams and as outlined in the Findings of Fact, above; In the event that Respondents, Maitland, Campen or O'Sullivan do not make application to the District as hereinabove directed, the Association, the County or other interested parties may submit applications to the District for a permit to repair the dams in accordance with the aforementioned standards within 60 days of the date of the Final Order; If either application is approved, the required repair work to the dams and the appurtenant works shall be completed within 120 days of the issuance of the necessary permits by the District; In the event that no permit application is submitted to the District, or if the work is not timely completed, then the District may, in its discretion, complete the repairs or de-water the impoundments by breaching the dams in order to eliminate the existing safety hazards; and The Administrative Complaint against Respondent, Sheila Walker, be dismissed. DONE and ORDERED this 10th day of July, 1990, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1990.
The Issue Whether the Petitioner, Silver Sands Estates, Inc., has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. Pursuant to Warranty Deeds dated August 15, 1975, and November 10, 1980, Silver Sands Estates, Inc. (hereinafter referred to as "Silver Sands"), acquired certain real property located in Clay County, Florida (hereinafter referred to as the "Property"). At the time Silver Sands acquired the Property, the applicable zoning district permitted the development of the Property for single-family residential development at a maximum density of one unit per acre. Development of the Property; Government Action Relied Upon by Silver Sands. In 1979-1980, Silver Sands prepared a development plan for the Property which included the planned single-family residential development known as "Little Rain Lake Estates." The planned development consisted of a total of 96 single-family residential lots. Phase One and Phase Two consisted of 13 lots in each phase. In approximately 1979-1981, Silver Sands improved and maintained an unpaved private road, Little Rain Lake Road, which was to be used for the development of Phases One and Two of Little Rain Lake Estates. The approximate costs to Silver Sands for these actions was $1,000.00. In 1979-1981, Silver Sands caused surveys, topographical surveys, and engineering plans to be prepared for the construction of a portion of Little Rain Lake Road as a paved dedicated road. Little Rain Lake Road was intended to serve Phases One and Two of Little Rain Lake Estates. The road was planned to eventually extend approximately 3,640 linear feet east from State Road 21. The approximate cost to Silver Sands for these items included the following: surveys, $4,000; topographic surveys, $6,000; engineering, $6,000. Plans for the construction of approximately 1,400 linear feet of Little Rain Lake Road were submitted to Clay County in 1980 for review and approval. This portion of Little Rain Lake Road was intended to serve nine of the lots within Phase One of Little Rain Lake Estates; the lots were shown on the plans for the road submitted to Clay County. The plans also depicted a temporary turnaround at the end of the 1,400 linear feet of the road submitted for approval. It was evident from the plans that Silver Sands planned a future extension of the road to serve the rest of Little Rain Lake Estates. Subsequent to the filing of the plans for the construction of the first 1,400 linear feet of Little Rain Lake Road, Clay County requested that Silver Sands submit the development plan for all phases of Little Rain Lake Estates (as described in Finding of Fact 3). Silver Sands complied with this request. Clay County was, therefore, aware of Silver Sands' plan to develop Little Rain Lake Road in conjunction with its development of Phases One and Two of Little Rain Lake Estates. On November 12, 1980, the proposed plans for the construction of the first 1,400 linear feet of Little Rain Lake Road were approved by Clay County. Between 1981 and 1991 eight lots within Phase One of Little Rain Lake Estates were sold. Silver Sands' Detrimental Reliance. In December 1980 and January 1981 Silver Sands constructed the first 1,400 linear feet of Little Rain Lake Road approved by Clay County. The cost of the construction was $26,845. In February, 1981, Clay County confirmed that the first 1,400 linear feet of Little Rain Lake Road approved by Clay County had been constructed pursuant to Clay County specifications. By Warranty Deed dated March 2, 1981, Silver Sands dedicated the portion of Little Rain Lake Road serving Phase One of Little Rain Lake Estates to Clay County. Also between 1981 and 1991, Silver Sands continued to maintain the unpaved and private portion of Little Rain Lake Road extending the remaining approximately 2,240 feet of the portion of Little Rain Lake Road intended to serve Phase One and Phase Two. The approximate cost to Silver Sands for these actions was $1,000.00. In 1997, Clay County requested Silver Sands to convey to the County approximately 34 acres of property along Little Rain Lake Road, formerly a part of Phases One and Two of Little Rain Lake Estates. Silver Sands conveyed the property to the County. Also in 1997, Clay County requested Silver Sands to dedicate the remaining approximately 2,240 feet of Little Rain Lake Road which had been surveyed and engineered by Silver Sands in 1979-1980. The County also requested Silver Sands to provide the surveys and plans which Silver Sands had prepared in 1979- 1980. Silver Sands dedicated the remaining portion of the road and provided the surveys and plans to the County. Rights that will be Destroyed. In 1991, Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Comprehensive Plan"). Pursuant to the Comprehensive Plan the land use category applicable to development of the Property as single-family residential limits density to one unit per 10 acres. Under the provisions of the Comprehensive Plan adopted in 1990, Phases One and Two of the planned development of the Property cannot be developed for the 13 lots located in Phases One and Two which still remain in Silver Sands' ownership. The portion of the Property still owned by Silver Sands which has not been developed consists of the four lots in Phase One and the nine lots in Phase Two (hereinafter referred to as the "Subject Property"). The Subject Property does not include the lots in Phase One which were sold between 1981 and 1991 or the acreage conveyed to Clay County in 1997. If Silver Sands must comply with the Comprehensive Plan, the Subject Property cannot be developed for the 13 lots originally intended on the Subject Property in Phases One and Two of Little Rain Lake Estates. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright). Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3). A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2). A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expense install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).
Recommendation That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Elsberry & Elsberry, Inc. Route 2, Box 70 Ruskin, Florida
Findings Of Fact Applicant-Respondent Atwater owns a residence fronting on Lake Minnehaha with access to the lake. He proposes to construct a dock from his property extending into the lake a distance of approximately 100 feet until adequate depth of water is found where his boat can be launched and retrieved. The boat house proposed for construction at the end of the dock will be roofed, but of open construction. Lake Minnehaha is a meandered lake. Accordingly the lake bottom below the mean high water line is sovereign land under the jurisdiction of the Trustees of the Internal Improvement Trust Fund (IITF). Numerous docks, some with enclosed boat houses, exist at various places around the perimeter of the lake. One such dock and boat house fronts on property just west of Atwater's property. Kling's property is adjacent and eastward of Atwater's property. Kling has a boat dock (but no boat house) extending from his property into the lake. Photographs showing views from applicant's and Kling's property are labeled to indicate that Kling's property is west of Atwater's; however, the conflict in direction is not material to the determination of the issues here involved. These photos further show that Petitioner's view of the lake from his house in the direction of the structure proposed by Atwater is materially blocked by trees and vegetation. The structure proposed by Atwater will commence 20 feet inside the easterly boundary of his property at the shoreline and extend into the lake. The proposed open boat house at the end of the dock will extend 12 feet toward Kling's extended property line, leaving the dock and boat house within the lakeward extension of Atwater's property line. With an open boat house the interference with a view of the lake will be minimal. Construction of the dock and boat house will not create any source of pollution and will not degrade the quality of the water of Lake Minnehaha.
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
