Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Return on Investment The respondent Lake County Service Corporation is a private water and wastewater treatment system which provides water and sewer service to residents of Valencia Terrace near Leesburg in Lake County, Florida. The respondent utility is entirely owned by First Federal Savings and Loan Association of Lake County, which is the sole supplier of funds to the utility. The respondent utility has not had a rate increase since 1972 and has been operating at a loss. Inasmuch as the First Federal Savings and Loan Association is the sole supplier of funds and the 100 percent owner of the utility, it is appropriate to use the capital structure of that Savings and Loan Association to determine a reasonable and proper cost of capital or rate of return on investment for the respondent utility. However, adjustments should be made to the capital structure of the Savings and Loan institution by removing short-term debts and liabilities (such as customer savings of less than one year) since they are subject to demand withdrawals and would be inappropriate for inclusion. After short-term maturities or debts are adjusted out, the capital structure of the financial institution resembles more closely that of a utility. After adjustments, the capital structure of the parent company was made up of 85.04 percent debt and 14.96 percent equity. The average cost of debt was 9.29 percent and the appropriate cost of equity was 17 percent, based upon a leverage scale developed by the PSC in Order No. 10603, Docket Number 820006-WS, issued on February 17, 1982. Based upon the adjusted capital structure of the Savings and Loan Association and the utilization of the leverage formula, the appropriate weighted cost of capital for the respondent utility is 10.44 percent. A rate of return on investment of 4 percent, as suggested by the petitioner, is not reasonable or appropriate in today's market place. A totally riskless investment would render a return from 8 percent (short-term) to 11 percent (long-term). Quality of Service The respondent utility's plant facilities were inspected by a PSC engineer. The utility has two wells, a primary well and an auxiliary or backup well. The auxiliary well was found to contain a small amount of dissolved iron. This well is not used as a primary water source, but is used only for fires, etc. Both wells comply with the Department of Environmental Regulation's (DER) water quality standards and requirements. Neither the water nor the sewer plants operated by the utility are under citation by the DER, and there are no outstanding corrective orders against these plants. The water tank is "blown out" twice a month and all pipes utilized by the utility are of PVC material. Three customers testified that they had problems with the quality of water and service provided by the utility. On occasion, they have found the water coming into their homes to be greatly discolored. Rust spots or stains have been observed on sidewalks and driveways and water pressure has varied. Ms. Holland has experienced problems with her laundry, primarily with white articles of clothing turning a yellow color after a period of time. She has also noticed a "pesticide smell" in her water, and now buys bottled water for consumption by her family. The caretaker for the respondent's water and sewer system, who spends six days a week in Valencia Terrace, has heard no complaints from the residents regarding service or quality of water.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that an overall return on investment in the amount of 10.44 percent is reasonable and appropriate; the quality of water and sewer services provided by the utility to its customers is safe, efficient and sufficient; and the respondent utility be authorized to increase its rates for water and sewer services in accordance with the PSC's Notice of Proposed Agency Action. RESPECTFULLY SUBMITTED and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Fredric W. Holland 1619 Sailfish Avenue Leesburg, Florida 32748 M. Roberta Christ, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Paul K. Mueller Lake County Service Corporation Post Office Box 420 Leesburg, Florida 32748 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joseph P. Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Respondents qualify for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Respondents are guilty of the violations alleged in the Notice of Violation and Orders for Corrective Action issued by the Director of District Management for the Office of the DEP Northwest District on May 13, 2003.
Findings Of Fact Parties The Department of Environmental Protection (DEP) is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, Florida Statutes, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Respondent, Santa Rosa Three, Inc. (the Corporation), is the fee simple title holder of certain property in unincorporated Okaloosa County, Florida, located between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. The property includes the subject water body, Lake Blake. Santa Rosa II, Inc., is a corporate predecessor in interest to the Corporation. Respondent, Lee Maddan (Maddan), is a long-time resident of Okaloosa County. Maddan is the Petitioner in DOAH Case No. 03-1499. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name, and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially-created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's, the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued, a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the nearest surface waters of the State of Florida. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake resulted from collected rainfall, as well as underground water intrusion in the original borrow pit. At the present time, additional diverted stormwater runoff collects in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that former owner, Ron Blake, excavate the lake and make it ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots. Okaloosa County has installed at least seven pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976, utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake for use as part of its existing stormwater drainage system. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981) for "Blake Lake Modifications" which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984, DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all of the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001, letter, like the previous letter, was issued from DEP's Northwest District and signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the property and the lacustrine wetland. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001, letter, nor the subsequent October 24, 2001 letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time, Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County, an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's dredge and fill jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to an abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or only slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, for purposes of establishing DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria set in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State and in lacustrine wetland. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits, Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented the water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. Such discharged water from Lake Blake ultimately is conveyed through the Okaloosa County stormwater drainage system and released into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Respondents primarily rely on Rule 62-312.050(4), Florida Administrative Code, which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Respondents also cite Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Respondents cite statutory exemptions. The definition of "waters" which are regulated under Chapter 403, as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because of not only its "possible discharge" but because of its actual discharge on the surface waters of Cinco Bayou. Respondents also cite Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake at least since 1976 has been utilized as part of Okaloosa County's stormwater drainage system, which is located landward of Cinco Bayou, it was not designed or constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated or maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction.
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
Findings Of Fact Based on the stipulations of the parties, on matters officially recognized, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, The Santa Fe Lake Dwellers Association, Inc. (SFLDA), is a Florida corporation, not-for-profit, which evolved from a voluntary association of area families contemporaneously with and in reaction to Intervenor's first activities on site. Its members are mostly riparian residents and owners although, it does have a number of members who reside in surrounding areas. SFLDA was formed to protect Lake Santa Fe. The purpose of the association is to protect natural resources and to inform those conducting activities around the lake to abide by rules, regulations, and procedures. The President of SFLDA, Harold Hill, expressed particular concern about protection of lifetime investments in property on the lake and property values. SFLDA has approximately 380 "family group" members, of whom approximately one-half live on Lake Santa Fe or on canals to the lake. Mr. Hill and other members of SFLDA use Lake Santa Fe waters for swimming, fishing, and recreation. Use of the waters of Lake Santa Fe and Little Lake Santa Fe is not restricted to property owners who abut the lake. There is public access to the lakes and they can be used by anyone who has a boat. Intervenor, Santa Fe Pass, Inc. (SFP), is a Florida corporation, which owns the property at issue. SFP acquired fee title to the land in its own name on April 28, 1978. Some or all of the present share holders in SFP purchased the land in the name of a trustee on January 9, 1976. The property at issue is a development property of approximately 110 acres located in Alachua County on a peninsula that almost separates Lake Santa Fe from Little Lake Santa Fe and is commonly known as the Santa Fe Pass. The Santa Fe Lakes are navigable and are classified as Outstanding Florida Waters under Chapter 17-4.304(4)(i), Florida Administrative Code, and are surrounded by Alachua, Clay, Bradford, and Putnam Counties. On November 13, 1978, a site visit was conducted on the subject property for purposes of establishing the dredge and fill jurisdictional limits of DER and the U.S. Army Corps of Engineers. Those present on the site inspection that day included Melvin H. Rector, the DER representative; another DER employee; Don Gowan, representative for the Corps of Engineers; William B. Watson, III, a co-owner; Boone Kuersteiner, an attorney for SFP; and Benjiman Breedlove, environmental consultant for SFP. At the November 13, 1978, site visit, DER made a determination of the extent of its dredge and fill jurisdiction under Section 403.817, Florida Statutes, in the area of the subject property. This determination was depicted and memorialized on an aerial photograph of the site and was signed by those present, including Mr. Rector on behalf of DER. Mr. Rector, the DER representative on site on November 13, 1978, used the following method to establish the location of the limit of DER's jurisdiction: Jurisdiction was based on the dominance of certain vegetative species listed in Rule 17-4, Florida Administrative Code, as it existed on that date. The listed species that were dominant in the jurisdictional area were a fringe of grass called maiden cane along the lake, and further landward, two forested species, pond cypress and swamp tupelo. Dominance was based on factors of whether listed species versus non-listed species covered a greater aerial extent in the canopy cover, made up more than 50 percent of the species by number, and had a greater biomass or weight. At that time DER had no authority to use soil types to establish jurisdiction. The line set by DER was based only on the vegetative index and not on the ordinary high water line. The filling which had occurred on the site prior to November 13, 1978, had no impact on where DER located its jurisdictional line, nor did it impair the ability of DER to determine where the line should be located. Any removal of canopy or subcanopy species landward of the line prior to that date also did not affect placement of the line. If no filling had occurred on Santa Fe Pass prior to November 13, 1978, DER's representative Rector would have located the jurisdictional line in the same place as he did on November 13, 1978. An abandoned powerline easement runs across the subject SFP property from the southwest area of the property to the northeast portion of the property, where it meets the lake. Prior to any filling by SFP or its immediate predecessor in interest, the easement area had been cleared of trees, and fill had been placed in some areas along the easement strip. At the time of the November 13, 1978, jurisdictional determination, the easement strip was dry and it was possible to drive a car down it to the lake. The easement strip was not paved, but had dirt and vegetation on its surface. Portions of the powerline easement strip were filled prior to January of 1975. There was no new fill on the powerline easement strip at the time of the November 13, 1978, jurisdictional determination. At that time, portions of the powerline easement strip contained old fill material covered by upland species of vegetation. On November 13, 1978, DER concluded that, based on vegetation in and adjacent to the powerline corridor on Santa Fe Pass, the corridor was entirely outside DER's jurisdiction. A low area or depression, also referred to as a pond, is located in the northeasterly portion of the subject SFP property, southwest of the portion of the powerline easement strip that extends into the lake. No fill was placed between the depressed area or pond and the lake prior to November 13, 1978. (Shortly after that date, fill was placed in that area.) There was no other physical alternation of the area near the depression or pond prior to the date of the jurisdictional determination. At the time of the jurisdictional determination, the depression or pond was separated from the lake by a natural low berm, the borders of which were vegetated and undisturbed. The depression or pond was not exchanging water with the lake at that time, although at other times there has been an occasional exchange of waters between the two. In addition, jurisdictional vegetative species were not dominant in the depression or pond area at the time of the jurisdictional determination. On November 13, 1978, DER did not assert jurisdiction over the low area or pond in the northeast section of the property because it was not connected to waters of the state and was separated from the lake by a low natural berm. DER's representative Rector inspected the jurisdictional line numerous times after November 13, 1978, including an inspection of the line as marked by the owner's consultant to make sure the line was accurate. Other DER representatives inspected the line in May of 1979 and also thought the line or the portions of the November 13, 1978, line they inspected were accurate. On June 11, 1979, DER representative David Scott wrote SFP that, after a recent DER inspection, there were no problems with the present DER jurisdictional line. Since the DER line was established on November 13, 1978, SFP has relied on its location to develop the project, to conduct filling activities landward of the location of the line, to create a site plan and plat, and to make sales representations to potential buyers. From the owner's standpoint, the purpose of establishing the line was to determine where it would and would not need DER dredge and fill permits to develop the land. Landowners use DER jurisdictional determinations for planning purposes. SFP has expended more than $100,000 for development reasons in good faith reliance on the line's location. In conjunction with 1984 revisions to Chapter 403, Florida Statutes, DER adopted Rule 17-4.022(8), Florida Administrative Code. This was a "grandfathering" rule provided for landowners who had had DER jurisdictional determinations done, so that they could continue planning with a previously fixed jurisdictional line. On January 8, 1985, SFP requested that DER validate the 1978 jurisdictional determination for the subject SFP property in accordance with Florida Administrative Code Rule 17-4.022(8). Attached to this request was the aerial photograph signed by DER employee Rector and others upon which the November 13, 1978, DER jurisdictional determination was graphically displayed. On July 9, 1985, DER issued a letter validating the November 13, 1978, jurisdictional determination under Rule 17- 4.022(8), Florida Administrative Code. Exhibit 1 to that letter was a validated version of the aerial photograph depicting the 1978 determination. The validated line is identical to the line established on November 13, 1978. DER staff followed normal procedures in validating the Santa Fe Pass line and, having done so, concluded that all validation criteria were met. On March 11, 1986, DER notified SFLDA by certified mail that on July 9, 1985, DER had validated its November 13, 1978, jurisdictional determination on the SFP property. SFLDA timely requested an administrative hearing on March 19, 1986. Although some SFLDA officers and members had conversations with DER personnel between July 9, 1985, and March 11, 1986, none of those conversations was sufficient to provide SFLDA with a clear point of entry into the process. In sum: The totality of the credible evidence supports the ultimate finding of fact that the DER jurisdictional line established on November 13, 1978, was accurately established and SFP is entitled to have that line validated.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue a Final Order validating the jurisdictional line as determined on November 13, 1978. DONE AND ENTERED this 27th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1047 The following are the-specific rulings on each of the proposed findings of fact proposed by each of the parties. By way of preface it should be noted that the evidence in this case consists of three days of testimony by numerous witnesses, some expert and some lay, with many different points of view. Some of the witnesses had an opportunity to view the subject property carefully on numerous occasions over a period of several years. Others only viewed it casually once or twice. Some gave the property a studied, scientific examination. Others gave it only a casual, curious glance. Some of the witnesses have an interest in what happens to the property. Others do not. Some witnesses were able to relate what they had observed with precision and detail. Others were somewhat vague, uncertain, and ambiguous. These many differences have resulted in a record which contains a great deal of conflicting factual testimony as well as a great deal of conflicting expert opinion testimony. The record also contains a great deal of what might best be described as "vague" testimony to which little weight has been given. In making the findings of fact in this Recommended Order and in making the specific rulings on the proposed findings which follow, I have given careful consideration to the testimony of all of the witnesses who presented testimony relevant to the issues in this case and have resolved the conflicts in the testimony by careful consideration of matters such as those summarized in the preceding paragraph, giving special consideration to each witness' opportunity to observe the property, the timing of his or her observation, the ability of the witness to perceive and understand what was being observed, and the ability of the witness to remember and recount what had been observed. In resolving the conflicts in the testimony I have also taken into consideration such matters as the extent to which the testimony was or was not consistent with other evidence, the extent to which it was or was not consistent with logic and common sense, and the extent to which the witness' interest (or lack of interest) might have colored his or her ability to objectively observe and recount the observation. Rulings on Petitioner's Proposed Findings Paragraphs 1,2, and 3: Accepted in substance, with the exception of the last sentence of Paragraph 3, which sentence is rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 4: Accepted. Paragraph 5: Rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 6: Accepted in substance, but with most of the details deleted as unnecessary and subordinate. Paragraph 7: Accepted in substance, for the most part, but with many unnecessary and subordinate details deleted. The sentence beginning on the ninth line of page 5 and the last sentence of this paragraph are rejected as irrelevant. Paragraph 8: This paragraph is rejected as subordinate and unnecessary. (While the witness Rector's current status as a private consultant to one of the parties is an underlying consideration in evaluating the credit to be given to his testimony [and has been considered in that regard), such status is nevertheless subordinate to the real issues in this case. The witness' education, experience, and demeanor while on the witness stand were also carefully considered, but if all of these matters were to become the subjects of findings of fact, the fact-finding process might never end and the significant facts might become forever lost in a morass of trivia.) Paragraph 9: Accepted in substance, but with many details deleted as unnecessary and subordinate. Paragraph 10: The first two sentences are rejected as irrelevant. The remainder of this paragraph is rejected as constituting unnecessary and subordinate details as well as being more in the nature of a summary of fragments of the testimony than a proposed finding of fact. Relevant findings about the "pond" are included in this Recommended Order. Paragraph 11: This paragraph is rejected as constituting a commentary upon a portion of the evidence or as constituting argument about the probative value of an item of evidence, rather than being a proposed finding of fact. To the extent this paragraph does contain material which could be regarded as proposed findings, they are subordinate and unnecessary details. Paragraph 12: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following Paragraph 12: Rejected as irrelevant and as constituting subordinate unnecessary details. Paragraph 13: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following paragraph 13: First sentence accepted in substance. The remainder of this paragraph is rejected as irrelevant or subordinate and unnecessary details. Paragraph 14: Rejected as constituting irrelevant, subordinate, unnecessary details about the hearing. Unnumbered paragraph immediately following Paragraph 14: The first two sentences of this paragraph and the last sentence of this paragraph are rejected as constituting irrelevant, subordinate, unnecessary details. Most of the remainder of the paragraph is accepted in substance with most details deleted as unnecessary and subordinate. Paragraph 15: Rejected as argument or editorial commentary rather than proposed findings of fact. First unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant and unnecessary details. Second unnumbered paragraph following Paragraph 15: The first sentence is rejected as constituting subordinate, unnecessary detail. The opinion incorporated into the second sentence is rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant in light of other credible evidence that the area had not been significantly disturbed at the time of the jurisdictional determination. The last sentence is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Third unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Fourth unnumbered paragraph following Paragraph 15: This paragraph is rejected in part as constituting irrelevant and subordinate details and in part as contrary to the greater weight of the evidence. Paragraph 16: The first two sentences of this paragraph are rejected as subordinate, unnecessary details. The remainder of the paragraph is accepted in substance, but with the deletion of many unnecessary details. Paragraph 17: The first seven sentences of this paragraph are rejected as subordinate and unnecessary. The eighth sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Furthermore, the witness' testimony relative to this opinion comes closer to being in the nature of "maybe" than being in the nature of, "probably." The ninth, tenth, and eleventh sentences are rejected because they constitute irrelevant subordinate details and because the testimony in this regard was not convincing to the extent it conflicts with the testimony of other witnesses. The last three sentences of this paragraph are rejected as being totally irrelevant to any issue in this case. Unnumbered paragraph following Paragraph 17: This paragraph is rejected in part because it consists largely of irrelevant or subordinate and unnecessary details, in part because the testimony upon which it is based was not persuasive, and finally, because much of it is contrary to the greater weight of the evidence. Paragraph 18: The paragraph is rejected as irrelevant and also as in part contrary to the greater weight of the evidence. Paragraph 19: This paragraph is rejected as irrelevant. Paragraph 20: The first sentence is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The second and third sentences are rejected as irrelevant or subordinate detail. The last sentence of this paragraph is rejected as irrelevant due to the time of the observations and in part not supported by competent substantial evidence. Paragraph 21: This paragraph is rejected as irrelevant. Paragraph 22: All but the penultimate sentence of this paragraph is rejected as irrelevant and subordinate details. The essence of the penultimate sentence has been included in the findings regarding the "pond." Paragraph 23: This paragraph is rejected. For the most part it consists of irrelevant or subordinate details. To the extent it is consistent with other testimony, it is cumulative. To the extent it is inconsistent with other testimony, it is contrary to the greater weight of the evidence and to a large extent not supported by competent substantial evidence. (It is worthy of note that much of the testimony to which this paragraph relates was substantially discredited on cross-examination.) Paragraph 24: This paragraph is rejected, primarily because it consists of irrelevant or subordinate details, but also because some of those details are not supported by persuasive competent substantial evidence. Paragraph 25: This paragraph (including all of its subparts) is rejected as constituting irrelevant and subordinate and unnecessary details. Paragraph 26: This paragraph is rejected as irrelevant. Paragraph 27: This paragraph is rejected. Many portions of the paragraph consist of irrelevant or subordinate details. The portions containing opinions are rejected as being contrary to the greater weight of the evidence and as not being wholly supported by competent substantial evidence. Rulings on Respondent's Proposed Findings With the exceptions specifically noted below, the substance of all of the findings of fact proposed by the Respondent have been accepted and incorporated into the findings of fact in this Recommended Order. Paragraphs 3, 4, and 7: These paragraphs are rejected as constituting subordinate and unnecessary details. Paragraph 6: The portion reading, ". . . except for a more landward relocation around the area identified as 'Gator Cove,' to include more area," is rejected as contrary to the greater weight of the evidence. Paragraph 8: The portion reading, ". . . except in the area described as Gator Cove," is rejected as contrary to the greater weight of the evidence. Rulings on Intervenor's Proposed Findings Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some unnecessary details deleted. Paragraph 3: Accepted in substance with the exception second sentence of this paragraph. The second sentence is rejected as being too narrow and incomplete a statement. The findings in this Recommended Order contain more complete findings regarding the "pond." Paragraph 4: This paragraph is rejected as constituting subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Accepted with the exception of the last sentence of this paragraph, which is rejected as irrelevant or as constituting unnecessary subordinate detail. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Accepted. Paragraph 13: Accepted. Paragraph 14: Accepted. Paragraph 15: Rejected as irrelevant or as constituting subordinate and unnecessary details. Paragraph 16: Accepted. Paragraph 17: Accepted in substance with some unnecessary details deleted. Paragraph 18: Rejected as constituting primarily subordinate and unnecessary details. this regard it should be noted that Mr. Tyler's opinion that a portion of the jurisdictional line is misplaced has been rejected as contrary to the greater weight of the evidence.) Paragraph 19: First sentence is accepted. The remainder, although essentially accurate, is rejected as cumulative. COPIES FURNISHED: Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Frank E. Matthews, Esquire Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Petitioner qualifies for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Petitioner's application No. 46-0199306-001-EE, seeking to place a modular home on a fill pad in Lake Blake, should be approved by DEP.
Findings Of Fact Parties DEP is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Lee Maddan (Maddan) is a long-time resident of Okaloosa County, and the Petitioner in Case No. 03-1499. Maddan is a Respondent in Case No. 03-2040. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Santa Rosa Three, Inc. (the Corporation), is a Respondent in Case No. 03-2040, and holds fee simple title to the property containing Lake Blake, which is located in unincorporated Okaloosa County between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. Santa Rosa II is also Respondent in Case No. 03-2040, and is a corporate predecessor in interest to the Corporation. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water body of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the body of water of the State nearest to Lake Blake. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake originally resulted from collected rainfall, as well as underground water intrusion in the borrow pit. Over the subsequent years and at the present time, additional diverted stormwater runoff collected in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that a former owner of the property, Ron Blake, excavate the lake and have it made ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots Okaloosa County has installed several pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed, nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976 utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981), for "Blake Lake Modifications," which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984 DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001 letter, like the previous letter, was issued from DEP's Northwest District signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the lake and lacustrine wetlands. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001 letter, nor the subsequent October 24, 2001, letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, in order to establish DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria stated in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State, and in lacustrine wetlands.. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. The water discharged from Lake Blake ultimately is released through the Okaloosa County stormwater drainage system into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou, and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Maddan primarily relies on Rule 62-312.050(4) which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Maddan also cites Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Maddan cites statutory exemptions. The definition of "waters" which are regulated under Chapter 403 as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because the lake actually discharges on the surface waters of Cinco Bayou. Maddan also cites Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake has been utilized by Okaloosa County's stormwater drainage system which is located landward of Cinco Bayou, the lake was not designed nor constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated nor maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction. Dredge and Fill Permit Denial On September 30, 2002, Maddan was notified of DEP's denial of his application to place a modular home on a fill pad in Lake Blake. Because Maddan took the position that DEP did not have dredge and fill jurisdiction over Lake Blake, or alternatively that Lake was exempt from DEP's jurisdiction, an analysis of whether Maddan's application might be approved under Rule 62- 312.060(5), Florida Administrative Code, has not been done. DEP has not performed any analysis of water quality standards nor public interest assessment required by the rule, and Maddan offered no evidence which would be necessary to make such determinations.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered upholding denial of Maddan's Permit Application No. 46-0199306- 001-EE. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON 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 10th day of October, 2003. COPIES FURNISHED: Charles T. Collette, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James E. Moore, Esquire Post Office Box 746 Niceville, Florida 32588 Robert W. Stills, Jr., Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether the Petition to Establish the Coastal Lake Community Development District should be granted pursuant to Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
