The Issue The ultimate legal and factual issue in this matter is whether Engle Homes, Inc., and Lake Bernadette, Inc. (Permittees), have provided the Southwest Florida Water Management District (District) with reasonable assurances that the activities they propose to conduct pursuant to Management and Storage of Surface Water (MSSW) General Construction Permit No. 49005837.017 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, 40D-4.302, and 40D- 40.302, Florida Administrative Code. In particular, the issues of fact to be litigated are whether the Project will cause adverse water quality impacts to receiving waters and adjacent lands; whether the Project will cause adverse flooding of on-site or off-site property; whether the Project will cause impacts to existing surface water storage and conveyance capabilities; and whether the Project will adversely affect the property of others.
Findings Of Fact The Parties Engle Homes, Inc., and Lake Bernadette, Inc., are corporations licensed to operate in the State of Florida. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. Driscoll resides at 35716 Welby Court, Zephyrhills, Florida 33541, Lot 14, within the Timber Creek 2 Subdivision (Subdivision). Driscoll requested this hearing to show the District that there is a drainage problem on Lots 13 and 14, and the adjacent Geiger property to the south, which should be fixed at this time and as part of the Project. Driscoll wants "Engle Homes to propose a new solution to fix the entire Welby Court Geiger property problem," i.e., from Lots 4 through 14, and not a piecemeal solution as proposed in the Permit modification. The Subdivision Engle Homes, Inc., and Lake Bernadette, Inc., developed the Timber Creek 2 Subdivision. Lots 15 through 25 run east to west and are north of Welby Court. Lots 15 and 16 are located north of the cul-de-sac, on the eastern portion of Welby Court. Lots 3 through 14 run west to east, south of Welby Court. Lots 13 and 14 are south of the cul-de-sac on the eastern portion of Welby Court and are across the street and the cul-de-sac from Lots 16 and 15, respectively. Residences exist on Lots 5, and 7 through 14. Driscoll owns Lot 14, a corner lot, which is the southeastern most lot of the Subdivision. Don Geiger (Geiger) owns the land (approximately five acres) south of the property lines of Subdivision Lots 5 through Geiger's northern driveway, essentially a dirt road, runs parallel to Lots 5 through 14. Subsequent to the original construction activity involving the Subdivision, the developer realized that there was an "existing depression" (referenced on Engle Exhibit number 1), south of Lots 7 and 8, and on Geiger's property. Geiger complained to the District about standing water in this area. This depression area is approximately 90 feet long and 30 feet wide which needed to be "drained off" according to Geiger. The depressed area on Geiger's property was most likely caused when Lots 7 through 14 were graded and sodded, which raised the "lots up a few inches" above Geiger's driveway/property. Water is trapped during a storm event between the back yards and the depressed area. As a result, the southern end of the back yards, particularly Lots 7 and 8, and the driveway remain constantly wet. The Project On January 16, 2001, Engle Homes, Inc., and Lake Bernadette, Inc., filed MSSW Permit Application No. 49005837.017 with the District, to address the problems with the rear lot grading and the adjacent property. The actual Project area for the permit modification1 includes the southern portions of Lots 4 through 9 and south of the property lot line including Geiger's property. See Finding of Fact 5. The modified permit does not address the drainage area including the back yards of Lot 13 and Driscoll's Lot 14, and the other portion of Geiger's property/driveway to the south. On April 5, 2001, the District issued MSSW Permit No. 49005837.017 to Engle Homes, Inc., and Lake Bernadette, Inc., under the provisions of Chapter 373, Florida Statutes, and Chapter 40D-40, Florida Administrative Code, for the modification of a surface water management system to serve the Project area. The proposed Project will involve the construction of a concrete inlet box with a safety grate, storm sewers, and grass swales. Specifically, the project is intended to solve the drainage problems associated with the "existing depression" south of the boundary line for Lots 7 and 8 on Geiger's property (although Lots 4 through 9 ("area 1") are included within the Project area), and the back yards of Lots 7 and 8. A catch basin is proposed to be located south and on the lot line between Lots 8 and 9, which is expected to drain off the water in the depression area to the modified surface water management system. The inlet box will be placed in the corner between Lots 8 and 9. The collected water in the inlet box will be routed underground through a series of 18-inch storm sewer pipe straight north through a drainage easement between Lots 8 and 9 to Welby Court. The underground pipe ties into an existing pipe in front of Lot 9 on the street, then runs east along the Welby Court right-of-way and then north between Lots 19 and 20, and eventually north into a large permitted retention pond, located to the north of the Subdivision which will handle the stormwater. Driscoll's Alleged Drainage Problem There is another distinct drainage area, i.e., "area 2," which includes Geiger's property and the southern portions of Lots 13 and 14, where water drains from south to north into a roadside ditch to Geiger Cemetery Road ("area 3"), which runs south to north and east of Lots 14 and 15. During a September 2001 tropical storm, there was standing water on Geiger's driveway, directly south of Lots 13 and 14, which was present for more than 3 days. This was referred to by Mr. Barrett as a "small drainage problem that could easily be corrected." On the other hand, Geiger says that there is standing water on his driveway, south of Lots 13 and 14, "all the time." This caused Geiger to move his driveway "50 or 60 feet" south. According to Geiger, the berm, which runs across Lots 10 through 14, should be lowered and the backyards reconfigured. But this would be quite disturbing to the neighbors. Therefore, Geiger recommends the placement of drains south of Lots 13 and 14, which would direct the water out to the ditch at Geiger Cemetery Road and away from Driscoll's Lot 14. The modified Permit is not intended to solve this problem, although Driscoll wants this problem fixed. It is not necessary to resolve Driscoll's issue regarding whether there is a drainage problem in and around Driscoll's lot. The two drainage areas 1 and 2 discussed herein are not connected, although they are close in proximity. The solution to the first problem has no impact on the second, and there is no cited statutory or rule requirement that both issues must be addressed in this Permit application. This is Driscoll's quandary. Compliance with Rules 40D-4.301 and 40D-4.302, Florida Administrative Code The Project will not impact wetlands or surface waters. The Project will not adversely impact the value of functions provided to fish and wildlife, and listed species, including aquatic and wetland-dependent species, by wetlands or other surface waters and other water-related resources. The Project will not adversely impact the quality of receiving waters such that the water quality standards will be violated. The Project will not cause adverse secondary impacts to the water resources. The Project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The Project will not cause adverse impacts to a work of the District. The Project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. The Project will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. The Project will comply with any applicable special basin or geographic area criteria established pursuant to Chapter 40D, Florida Administrative Code, by the District. The Project will not adversely affect the public health, safety, or welfare. The Project will not adversely impact the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The Project will not adversely affect navigation. The Project will not cause harmful erosion or shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not adversely affect significant historical and archeological resources. The Project will not cause unacceptable cumulative impacts upon wetlands and other surface waters. The Project area is less than 100 acres. The Project does not require dredging or filling of wetlands, or construction of boat slips. The Project is not contrary to the public interest. The Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and will not adversely affect or impact the property of others, including Driscoll's property, Lot 14. "Area 1," between Lots 4 and 9, is a separate drainage area, and the water from this area does not drain to Lot 14. Driscoll's property is not within the Project area, and the Project was not intended to resolve his alleged drainage problem. The Project will not cause adverse flooding to on-site or off-site property. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Rather, the project is expected to improve the conveyance of water and drainage for "area 1" and the Project area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Management and Storage of Surface Water General Construction Permit No. 49005837.017. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
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
The Issue Is Respondent responsible for alterations to a dam over which Petitioner has jurisdiction? Has Respondent performed these alterations without the benefit of a permit issued by Petitioner? Should Respondent be required to make changes to that structure?
Findings Of Fact One and one-half miles east of Crestview, Florida, which is in Okaloosa County, a dam has been constructed. The dam construction has formed an impoundment area thereby altering the course of a tributary to the Shoal River, an Outstanding Florida Water Body. Respondent contributed to the construction which formed the dam. He did so without benefit of a permit from Petitioner. No other person has obtained a permit from Petitioner for the dam construction. Respondent is a resident of Crestview, Florida. At present the impoundment of water created by the dam is more that 10 feet but less than 25 feet in height from the natural bed of the water course at the down stream tow of the barrier formed by the dam. The work which has been done on the dam by the Respondent is based upon his belief that he is entitled to an easement at the stream crossing. The dam impoundment has no agricultural purpose. John Rittenour claims ownership of the land at the stream crossing and takes issue with Respondent's belief that Respondent has an easement for that crossing. Mr. Rittenour did not authorize Respondent to do the work at the subject site nor was Mr. Rittenour responsible for performing work at the subject site independent of Respondent's activities. There is no dispute concerning Respondent's ownership of property in the vicinity of the stream crossing. Prior to March, 1990, Respondent had made certain changes at the subject site to maintain a vehicular crossing. The pre-March, 1990 changes were to a structure which used a culvert to allow the water in the stream to flow through the crossing. In addition Respondent was trying to create a water impoundment area behind that structure prior to March 1990. The nature of these activities was not such that the Petitioner had a basis for imposing the regulatory requirement that Respondent obtain a permit to conduct the alterations at the subject site. In March, 1990, the dam at the subject site breached. As a consequence, other structures down stream also failed. Those structures belonged to Mr. Rittenour. The breach created conditions unsafe to the public. In April, 1990, following the breach, Respondent reestablished the stream crossing. The work which he did created the present dam height which had been described. The stream crossing provides local residents with access to their homes. There is another route to those homes, but its future availability is in question. On July 30, 1993, Jerry Sheppard, Senior Field Representative for Petitioner, inspected the subject site. The findings that he made at that time are set forth in Petitioner's Exhibit No. 3. That Exhibit roughly describes the structure in question. In particular, it references the fact that the dam height is approximately 10.5 feet as observed through the form of measurement already described. The dam is 13 to 15 feet in depth. It's width is approximately 200 feet. It has horizontal culvert pipes to allow water flow through the dam. One pipe is 18 inches in circumference. The other pipe is 36 inches in circumference. The inspection which Mr. Sheppard made on July 30, 1993, revealed that the changes to the structure following the breach in March, 1990, had increased the water impoundment area as to the landward extent of that water. Mr. Sheppard was concerned with safety problems associated with the dam which he observed on July 30, 1993. He found the overall construction to be of poor quality. There were problems with vertical slopes on the dam faces, trees were observed to be on the slopes and the aggregate material used for construction was sandy in composition. All these conditions contributed to the substandard construction. Mr. Sheppard was also concerned about a change in the surface water volume that was created with the increase in the impoundment area. This could cause greater safety hazards in a future dam breach than had been occasioned by the March 1990 breach. The March experience released a lesser volume of water by comparison to the expected volume of water with a future breach. Lance Laird, P.E., had accompanied Mr. Sheppard on the inspection at the subject site that was conducted on July 30, 1993. Mr. Laird is an expert in agricultural engineering and design of small dams. Mr. Laird is employed by Petitioner and was in its employ in 1993. Mr. Laird's observations concerning the dam that were made on July 30, 1993 are memorialized in a document which Mr. Laird prepared on August 2, 1993. That document is Petitioner's Exhibit No. 5. Pertinent to this case, Mr. Laird notes that the method of establishing the dam height was done by shooting the dam centerline at 50 foot intervals and the elevation of the tow by examining the elevation of the normal ground at station 1+75. Specifically, the dam crest was found to be at a height of 10.48 feet to 11.04 feet. Therefore, it was established that the maximum impounding capacity would be at 11.04 feet of dam height. On September 7, 1993, Mr. Sheppard spoke with the Respondent. Respondent told Mr. Sheppard that the Respondent had an easement across the stream to allow access to property away from the stream. For that reason, Respondent told Mr. Sheppard that Respondent believed he could make alterations or repairs to the structure at the stream crossing that would be acceptable. Respondent also told Mr. Sheppard that the stream crossing structure was there before Respondent purchased property in the area and that Respondent had been responsible for making the repairs which are under consideration in this case. On this occasion Respondent told Mr. Sheppard that there were three or four mobile homes further down the lane from the stream crossing, in addition to one house site located in the area of the stream crossing. Respondent's Exhibit No. 4 is a memorandum concerning the telephone conversation which was conducted between Mr. Sheppard and the Respondent on September 7, 1993. As described in the August 2, 1993 memorandum which reflected the findings on July 30, 1993, the road crossing was over a dam found at the perennial stream which goes under the roadway formed by the dam. As Mr. Laird observed, the effect of the two culverts is to back the water up to within 3 feet of the dam crest. A plywood stop-log is placed over the entrance of the 36 inch pipe that serves as a principal spillway. There is a plywood plug for the inch pipe; however, it was not installed on July 30, 1993. On that date Messrs. Sheppard and Laird noted a washed out area that serves as the emergency spillway that was approximately 20 inches wide. When Mr. Laird made his inspection on July 30, 1993, he was of the opinion that the dam would not meet current engineering standards for construction of an earthen impoundment dam. In particular, he believed that the utilization of horizontal pipes and the history of failure of the structure were indications that the dam did not have the hydraulic capacity to meet the design storms that are anticipated for this area. The location of the 36 inch pipe was such that it was canterlevered out from the road fill by about 5 feet. The side slopes were from steep to vertical on the back slope. The upstream slopes were not found to be as steep. In the August 2, 1993 report Mr. Laird expressed the opinion that the facility/dam needed to be modified to meet hydrological/hydraulic requirements and other construction standards for dams used as access roads. Mr. Laird specifically noted that a further dam breach would have adverse affect on Mr. Rittenour's property, and ponds which were down stream and possibly cause the failure of structures that Mr. Rittenour had put in place, all leading to the possibility of the release of sediments into the Shoal River. On November 3, 1994, Mr. Laird returned to the subject site for further inspection. He rendered a report of that inspection on November 4, 1994. That report is found as Petitioner's Exhibit No. 7. In the course of the November 3, 1994 inspection Mr. Laird observed that the appearance of the dam was similar to that on July 30, 1993. The principal difference was that logs and debris were now present in the inlet and outlet ends of both of the culverts/pipes. Some of the logs were fairly large. One log was estimated to be 12 to 14 inches in diameter and 20 to 25 feet long. This log was at the outfall of the 36 inch pipe. The consequence of this debris in the areas of the two pipes was to restrict the hydraulic capacity of the system. This was made more significant because the horizontal pipes had inherent limitations on their hydraulic capacity. Under the circumstances it was imperative that the debris be removed. On this visit Mr. Laird also noted that the pipes were uncoated and rusting, thus limiting their life span. On this visit Mr. Laird noted that the emergency spillway had now become filled with sediments that had eroded from the road leading down the hillside to the dam site. Mr. Laird expressed a concern about the method of construction and the material used in that construction and the susceptibility of those fill materials to erode. In particular, Mr. Laird observed that the material was sandy and for that reason susceptible to erosion. Finally, Mr. Laird noted upon this visit that the sizing of the culverts had not been proven to be adequate when considering their intended function in the dam. On November 15, 1993, Messrs. Morgan, Laird, Sheppard and Mitchell May met with the Respondent and his attorney at the subject site. The outcome of that meeting is memorialized in the memorandum from Mr. Morgan dated November 16, 1993, a copy of which is Petitioner's Exhibit No. 2 admitted into evidence. In the November 15, 1993 meeting, Respondent and his attorney were told about the various concerns which the Petitioner had about this dam consistent with the prior observations made by Petitioner's staff as described in this recommended order. Discussions were held concerning the means of correcting the problems. At this time Respondent indicated that he had been informed, by someone who was not identified, that the alternate route for residents in the area to gain access to their homes was being closed and that the stream crossing would then form the only means of ingress and egress to those properties. Respondent explained that he had spent $3,000 in improving the dam. Further he made mention that he had originally sold 12.5 acres of property around the impoundment created by the dam and no longer had any interest in the property. Although no resolution was reached concerning the proper disposition of the problem created by the dam, Mr. Morgan noted in his November 16, 1993 memorandum that this safety hazard that had resulted from the impoundment of water at the dam site by virtue of the deficiencies in the dam construction must be corrected if the crossing was to be used as the sole access route into the residences which have been described. On November 19, 1993, Mr. Laird prepared a memorandum in response to the request by Respondent's counsel through correspondence dated November 8, 1993, concerning the method of establishing Petitioner's jurisdiction over the dam pursuant to the dam height. The November 19, 1993 memorandum coincides with prior observations about the method to be employed in establishing that jurisdiction which are set forth in this recommended order. A copy of the memorandum is Petitioner's Exhibit No. 6. Petitioner's Exhibit No. 6 has a rough sketch and other calculations in support of the determination of the dam height. Concerning Mr. Laird's testimony at hearing, he reiterated that the establishment of the dam height was through a measurement of the down stream site in which the elevation difference between the impounded water and down stream elevation at the stream bed were critical factors in determining the potential hazard should there be a further breach of the dam. As established by Mr. Laird, proper methods of dam construction must be carried out in accordance with accepted engineering practices. In trying to determine acceptable engineering practices Mr. Laird relies on his experience as a professional engineer and expert in the design of small dams together a number of publications, to include publications from the Soil Conservation Services on design of dams, the U.S. Corps of Engineers and the Bureau of Land Reclamation. As Mr. Laird described at hearing, the dam design is deficient in that it is not made of suitable materials. Those materials are sandy. This allows water to migrate through the dam and to saturate the dam, thereby making the dam more prone to failure. The slopes on the back side of the dame are so steep that they cannot be maintained. The dam is eroding and two gullies have formed extending up to the crest of the dam. There is a third pipe in the dam face which is 18 inches in diameter and it is rusting. This pipe was there before the dam breach in March, 1990. It was left in place when repairs were made following that breach. Its existence could increase the flow of water in the event of a failure of the dam or if this third pipe collapsed it could form a void in the dam face. The principal spillway for the present dam is created by the use of the newer pipes that were placed horizontally. The placement of those two pipes creates limited capacity for flow-through and their rusty condition creates limitations on the effective life of those pipes. Those pipes could not be relied upon to handle storm events. In anticipation of a storm event, the pipes are placed so high on the dam face that they could not be used to evacuate water to meet the contingency of an upcoming storm or flood event. This arrangement unlike a head gate or control device below the water surface, which would allow the evacuation of water to meet the upcoming contingency of a storm or flood event, is without utility. The placement of the present pipes at the dam site is so high that they cannot be relied upon to dewater in anticipation of such a contingency. As has been verified by observations of these pipes, horizontal pipes are prone to be clogged by debris. An appropriate spillway would have a means of protecting the spillway against clogging. The emergency spillway is inadequate in that it continues to be filled in from erosion of the hill above the emergency spillway. On the dam surface, trees, weeds and other debris make it difficult for someone to perform an inspection of the dam condition, which is a necessary activity. Those same materials can penetrate the dam surface and cause erosion or in some instances if a tree were to fall and break the surface of the dam could cause further erosion. In summary, the dam does not meet generally accepted engineering standards for design nor comply with the requirements of safety for small dams as established by the opinion of Mr. Laird. The dam poses a safety hazard to people using the dam to cross the stream and for the down stream landowners should the dam breach as it did in March 1990. Mr. Rittenour would not be opposed to having a stream crossing at the subject site to allow access to nearby properties. He is opposed to a dam at the site with its associated impoundment. Under the circumstances the appropriate means of addressing the problem of the dam would be to remove the dam and its associated impoundment of water and replace that structure with a crossing which would allow vehicular traffic. This disposition is consistent with the order for corrective action. This would involve the safe removal of water behind the present dam structure and reduce the risk of sudden release of an increased volume of water from a future breach when contrasted to the 1990 breach. In this solution the spillway pipes would be lowered to an elevation at the natural level of the stream, thus the impoundment would be ended with the new structure which would allow vehicular traffic to cross the stream. A one to two foot fill would need to be placed over the pipes to maintain the crossing as a roadway. This would lower the crest of the structure to an elevation just above the stream bed. During the course of any construction, sediment barriers would need to be placed downstream and in areas where the construction was ongoing to prevent problems with sedimentation. Grass would need to be placed on any disturbed areas and on the slopes of the new structure. Alternatively, the entire structure could be removed with proper controls being placed to protect against sedimentation and erosion in the area in question. Maintenance of the structure as a dam with its associated impoundment is not contemplated by this administrative action and would only be appropriate in the event that the dispute over the ownership of this site is resolved by informal settlement between Respondent and Mr. Rittenour or through litigation.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which declares the dam and impoundment to be a public nuisance created by Respondent and informs the Respondent of the necessity to obtain a permit before removing the dam and impoundment and reestablishing the roadway at stream bed level. DONE and ENTERED this 12th day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 December, 1994. APPENDIX Petitioner's proposed facts are subordinate to the facts found in the recommended order. COPIES FURNISHED: Gary J. Anton, Esquire Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, FL 32302 H. S. Harrell 3153 Alpin Road Crestview, FL 32536 Douglas Barr, Executive Director Northwest Water Management District Route One, Box 3100 Havana, FL 32333
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
Findings Of Fact Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 failed to appear or send a qualified representative on their behalf to formal hearing, and, accordingly, their petition is subject to dismissal, pursuant to Rule 221- 6.022 F.A.C. Applicant Ratkovic owns two adjacent rectangular-shaped pieces of property, Lots #5 and #6, located at 19 Magnolia Drive, within the city limits of St. Augustine, Florida. These lots are bounded on the north by Oceanway Street, a dirt road, and on the east by Magnolia Drive. The Ratkovic house is located on the lot which directly abuts Magnolia Drive (Lot #6). Lot #5 is immediately to the east of Lot.#6 and is separated from it by a ten-foot wide alleyway. Oceanway Street deadends into Salt Run, a Class III Water of the State, which is next to Lot #5. Lot #5 is 55 feet wide in a north-south direction and 82.5 feet long in an east-west direction. Lot #5 is completely within the landward extent of Salt Run. Lot #5 may be cnaracterized as a flat, intertidal sand beach and DER's jurisdiction with respect to it extends to the ordinary mean high water line. Salt Run is an embayment off of the Atlantic Ocean which, with the help of a concrete artificial groin, forms a cove in the vicinity of the proposed project. Water flow in the cove is serene enough to allow a tidal marsh to grow along parts of the shoreline of the cove, but there are still two areas of the cove in which no vegetation grows: waterward of Applicant's property and waterward of the property of Petitioners Steger (DOAH Case No. 89-6366). The Steger property is several lots south of the Applicant's property. Marine vegetation grows in the southeast quadrant of Lot #5 and to the north of Lot #5. The proposed project involves the placement of 19 pilings on 4'8" centers along the northern lot line of Lot #5. The proposed pilings would run on a line in the middle of the unvegetated area, approximately halfway between the two areas of tidal marsh growth, out to the waterward edge of Lot #5. 7. The Applicant desires a dock for Lot #5 and has already availed himself of the general permit provisions of Rule 17-312.808 F.A.C. The dock has not been constructed because he has been unable to obtain local approval for its construction. Respondents assert as a legal proposition that a 1,000 square foot (6 foot wide) piling-supported dock, if built on Lot #5, would be exempt from the requirement of obtaining a DER dredge and fill permit such as the one at issue here, and because of Respondents' assertion, it is one of Petitioners' concerns in this proceeding that the Applicant not be permitted to do by indirection that which he has been prohibited by local government (but not DER) from doing directly. However, that dock permit and those peripheral legal propositions need not be resolved in this proceeding for the reasons set out infra. The Applicant intends that the proposed pilings at issue here will serve as the northern support structure of his proposed dock, if local approval is eventually granted for the dock. However, without such local approval of his proposed dock, the Applicant's proposed pilings would still serve as a barrier to vehicular traffic which presently has unrestricted access across the beach and across his private property, Lot #5. The Applicant represented that he wants to install the pilings with or without the dock approval so as to prevent late night driving of cars on his beachfront property. Salt Run is full of docks, and this vicinity of Salt Run is the only area totally unobstructed by docks. This vicinity also has the only bottom area in Salt Run not encrusted with oyster or other bivalve shells. The only water quality standard to be impacted by the proposed project is turbidity. Turbidity results from the resuspension of bottom material and will occur briefly during the placement of the pilings. At the proposed project site, the bottom material is sand, which when resuspended, rapidly falls to the bottom and therefore has little environmental impact under the circumstances of this application. However, turbidity controls have been required by Specific Condition 4 of the DER Draft Permit. The foregoing factors assure that water quality standards will not be violated by the proposed pilings. The testimony of DER's agency representative, Jeremy Tyler, who was accepted as an expert in oceanography and the impacts of dredge and fill projects to wetlands and water quality, is accepted that because the proposed pilings will be located on a flat, intertidal sand beach, and because installation of the pilings requires appropriate turbidity controls, the placement of the proposed pilings will not generate turbidity sufficient to impact the tidal marsh, and, accordingly, their placement will not adversely affect the conservation of fish, wildlife, or their habitats. Similarly, it is found that fishing, marine productivity,- and the current conditions and relative value of functions being performed by the tidal marsh will not be adversely affected by the proposed project. The proposed project will not have any effects upon the public health, safety, or welfare, the property of others, or significant historical or archaeological resources. It will be permanent. The proposed project will not adversely affect the flow of water at the proposed site and will not cause harmful erosion or shoaling. Depending upon the time of the month, the time of the year, and the height of the tide, water could wash up to the landward side of Lot #5, or could leave the lot high and dry. Oceanway Street, the dirt road adjacent to the Applicant's property on the north, has historically been used by the neighbors and general public to drive down to Salt Run. These persons have used the cleared area between the tidal marsh sections described supra for wading, swimming, throwing of cast nets, and launching of boats and windsurfing boards. Because it is within the city limits, the area is also very attractive to those who just wish to stroll up the beach on a north-south tangent. In gaining access to the water of Salt Run, some persons have not differentiated between Lot #5, which is private property, and Oceanway Street. One reason for this lack of discernment seems to be that nearby Ingram Street, also a public access, is in such disrepair that prudent persons avoid it. Also, Applicant either built on Lot #6 or moved into the house on that lot only within the last few years, and while Lot #6 was formerly unoccupied, the neighbors and the public were free to walk dogs, moor and launch boats, and enjoy virtually all recreational activities in public areas and on Lot #5 with impunity. In essence, Lot #5 has been treated as a public beach. In the recent past, the Applicant's attempts to "run off" persons who have utilized his property in these ways have caused bad feelings in the neighborhood. Also, Lot #5 has been inadvertently used for recreation some of the time that it is covered with water, and this seems to be the source of some persons' confusion over where the Applicant's right to "run off" the public begins and ends; however, the evidence is insufficient to establish a public easement across Lot #5. If the proposed piling project were constructed, beach walkers, swimmers, or waders approaching one of the piles (and if local approval is obtained, ultimately the dock) might have to alter their course to avoid a collision. The 4'8" gap between pilings would allow this, but in the event a dock is installed, it might be more prudent to avoid the area altogether. Cast netters would have to alter their net throws so that their backswing or release would not intersect the position of a proposed piling and so that their nets would land along the line of the proposed pilings instead of on the pilings or dock. This could be done. Boaters and windsurfers, after placement of the proposed pilings, would have a far narrower area within which to launch and land their boats and boards. However, this narrowing would not preclude such launching or landing. Boats often start and end their journeys at docks, which, from a boat hull's perspective, are nothing more than a row of pilings. Windsurfing boards are approximately two feet at their widest. When a windsurfer capsizes in open water, he typically rights his board and starts anew. Here, if windsurfers do not wish to launch in the clear area remaining to the north of the last piling, which they could easily do, they would be able to walk their boards out to the last piling and start as they would in open water. The proposed pilings will make it more difficult to launch or land a windsurfing board, but it would not preclude such use of the water. There is also a public boat ramp at Lighthouse Park, the northern boundary of which is four blocks to the south and three blocks to the west of the proposed project site. Boaters or windsurfers who did not choose to use the end of Oceanway Street to obtain access to Salt Run would be able to use that location.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Dismissing the Petition in DOAH Case No. 89-6367; Denying the Petitions in DOAH Case Nos. 89-6363, 89-6364, 89-6365, 89-6366, and 89-6368; and Granting the dredge and fill permit application as specifically conditioned by the Department of Environmental Regulation's Intent to Grant. DONE and ENTERED this 19th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-6363, 89-6364, 89-6365 89-6366, 89-6367, 89-6368 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners Stegers' PFOF filed May 22, 1990: Paragraph 1: Sentences 1, 3, and 4: Accepted as fact, however, the degree of obstruction, the significance of recreational values within the applicable statutory balancing test, and the legal implications of that balance as contained in the Recommended Order more accurately reflect the record as a whole. Sentence 2: Accepted as modified to more accurately reflect the record as a whole. Sentence 5: Rejected as unproved. See what was proved and what was speculated in FOF 9 and 11 and COL 11. Paragraph 2: Rejected as not proved. Respondent DER's PFOF filed May 22, 1990: 1-16 Accepted as modified to more accurately reflect the credible, competent, substantial evidence of record as a whole. To date, no other PFOF have been filed. COPIES FURNISHED: Judson and Annelle West 4 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Virginia Quill Myers Mary Susanna Myers 322 Ponce de Leon Avenue Anastasia Island St. Augustine, Florida 32084 Ronald Asner 37 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Dan and Sue Steger 25 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Kayla K. and Eric Douglas 69 Lighthouse Avenue Anastasia Island St. Augustine, Florida Mary H. Acebal 32084 E. V. Acebal 10 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Mr. Jack Ratkovic Post Office Box 4482 St. Augustine, Florida 32085 William H. Congdon Assistant General Counsel, DER Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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.
