Findings Of Fact The Parties and the Property. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat., Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures. The Porters' Civil Action Against Saddlebrook. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application. Saddlebrook's MSSW Permit Application. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete. SWFWMD's Review of Saddlebrook's Application. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application. Compliance With SWFWMD Permitting Criteria. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts. Water Quantity. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973. Flood Protection. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property. Water Quality. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards. Wetland Impacts. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements. Wiregrass' Petition. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief": The application, as submitted, contains insufficient storage to meet water quality criteria. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic] as required by the DISTRICT criteria. The application, as submitted, contains calculations based on erroneous hydraulic gradients. The application, as submitted, will result in storage volumes insufficient to meet water quality criteria as required by DISTRICT criteria. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further, the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition. Objections Raised by Wiregrass At The Hearing. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds: For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.) In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing. The 1973 Pre-Development Date. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels. Other Governmental Agencies' Requirements. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies." SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and 96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than 100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton 373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements: The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County: The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.) Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance. Annual Volume of Runoff. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301, as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. 12.-13. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters. Accepted but subordinate and unnecessary. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it. 18.-20. Accepted but subordinate and unnecessary. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines. 26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant. 32.-34. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation. Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Respondents' Proposed Findings of Fact. The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Douglas P. Manson, Esquire Foley & Lardner 101 East Kennedy Boulevard Suite 3650 Tampa, Florida 33602 Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis East Randolph Drive Chicago, Illinois 60601 Enola T. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves East Kennedy Boulevard Suite 800 Post Office Box 3350 Tampa, Florida 33601-3350 Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a Management and Storage of Surface Waters (MSSW) permit for a surface management system to serve its proposed development in Marion County, Florida.
Findings Of Fact PROPOSED PROJECT Celebrity is seeking a District MSSW permit to construct a surface water management system to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The entire site is within the geographic boundaries of the District. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Parts of Marion County and Alachua county have been designated as Sensitive Karst Area Basin by the District. The project site is located in the designated area. The existing land use is open pasture. The property was previously used for citrus groves. STANDING Concerned Citizens of Orange Lake Area is an unincorporated group of approximately 76 individuals who want to prevent pollution of Orange Lake. Of the 76 members, three members were present and testified at the hearing. The members attending the hearing were an artist (Riley), a photographer (Suto), and a bass guide (Solomon). Ms. Suto testified that she lives about 1 to 1 1/2 miles from the site. Ms. Riley testified that she lives next door to Ms. Suto and determined that to be over two miles away from the site. Mr. Solomon testified that he lives on the southeast side of Orange Lake approximately 1 to 1 1/2 miles from the project site. No witness testified that any member has a property interest in the subject property. Of the members who testified, none use the subject property. There was no testimony that other members use the property. Twenty-six members wrote letters of concern to the District. Ms. Suto testified to the existence of high levels of lead in her well water. WATER QUANTITY The existing land use, pasture, was used to determine the pre- development peak rate and volume of discharge. The existing surface drainage of the 75-acre project site is divided into two basins. On the north side of the property, the surface water flows toward Orange Lake. This basin is designated on the plans, sheet 3 of 16, by a "2." The south portion of the property is contained within the landlocked drainage basin which is designated on the plans, sheet 3 of 16, by a "1." The post-development flow of surface water will be in the same direction as the pre-development flow. There are no proposed development plans or encroachments into the 100- year floodplain. Therefore, there is no increase in potential for damages to off-site property or persons caused by floodplain development or encroachment, retardance, acceleration, displacement, or diversion of surface waters. There is no reduction in natural storage areas and, in fact, the proposed project increases the natural storage on site. Drainage Basin 2 The District's criterion for systems discharging to basins with an outlet is that the post-development peak rate of discharge for the 25-year, 24- hour storm event shall not exceed the pre-development peak rate of discharge for the 25-year, 24-hour storm event. The District's criteria also require that the post-development volume of discharge not exceed the pre-development volume of discharge. The retention system which ultimately discharges to Orange Lake is designed to retain the entire 25-year, 24-hour storm event through the series of basins on site. The pre-development peak rate of discharge for the drainage basin which flows to the lake is 55 cubic feet per second (cfs) during the 25-year, 24-hour storm event. The post-development peak rate of discharge from drainage basin 2 is 4 cfs. The post-development peak rate of discharge is less than the pre- development peak rate of discharge. Runoff from each RV site will be collected in an individual, ten-inch- deep retention basin. Runoff from the road will be collected in roadside swales. Runoff from the clubhouse, country store, and associated parking lots will be conveyed to drainage retention area (DRA) No. 8. The individual retention basins have the capacity to retain the 25- year, 24-hour storm event without discharging. Any surface water discharges from the individual retention basins in Basins 2A, 2B, and 2C as designated on sheet 3 of 16 will flow to DRA Nos. 4, 5, and 7, respectively. In Basin 2D, runoff from the road and RV park model sites will flow to DRA No. 6. The discharge from DRA No. 6 in the 25-year, 24-hour storm will be zero (0) cfs. In larger storms, any discharge from DRA No. 6 will flow to DRA No. 7. In the event DRA No. 7 overflows, the runoff will flow to DRA No. 5. Basins 2G and 2F are located around two existing sinkholes which currently collect stormwater runoff. In the proposed project, Basins 2G and 2F continue to drain the same area as pre-development. However, additional impervious surfaces will be placed in the drainage area. For this reason, an additional three to five feet of clean fill will be placed in the bottom of each sinkhole for filtration purposes. Basins 2H and 2I are less than one acre and currently drain off site. Berms are proposed around the property line at the basin to keep the stormwater on site. Basins 2H and 2I retain 3/4 inch of runoff over the individual basin. The runoff from Basins 2E1 and 2E flows to DRA No. 8 via a drainage swale. DRA No. 8 will retain 3/4 inch of runoff from the drainage area and is an off-line retention basin. The DRA No. 8 is equipped with a diversion box which allows the 3/4 inch of runoff to enter the DRA and then diverts the runoff from larger storms around the DRA so that the treatment volume of runoff (3/4 inch) continues to be treated in DRA No. 8 and does not mix with and discharge from DRA No. 8 during larger storms. Drainage Basin 1 Drainage Basin 1 as designated on plan sheet 3 of 16 is a landlocked basin which does not discharge to Orange Lake. In Drainage Basin 1, as in Basin 2, the runoff from the RV sites flows to the individual retention basins which retain the 25-year, 96-hour storm event. The runoff from the road flows to swales. Overflow from the basins and swales flow to the DRAs. Drainage Basin 1 does not discharge during the 100- year, 24-hour or the 25-year, 24-hour storm event, pre-development or post- development Drainage Basin 1 is designed to retain the 100-year, 24-hour storm, which is an 11 inch storm event. Drainage Basin 1 is also designed to retain the 25-year, 96-hour storm event. The 25-year, 96-hour storm event is 143% of the 25-year, 24-hour storm event. WATER QUALITY Design Criteria The District's design criteria for water quality are set out in Section 40C-42.025, Florida Administrative Code. The District's retention criteria require that a proposed system have a treatment/pollution abatement volume of 1/2 inch of runoff from the site. For discharges to an OFW, the pollution abatement volume is increased by fifty percent. Therefore, the system must have the volume to retain 3/4 inch of runoff from the site. Each retention basin retains a minimum of 3/4 inch of runoff from the site. The District's criteria regarding quantity of water discharged require a larger volume of runoff to be retained than the District's criteria regarding quality. Therefore, the retention system exceeds the District's criteria regarding quality in order to meet the criteria regarding quantity. The District's retention criteria require that the basin recover the treatment volume within 72 hours. Most of the retention basins retain more than the required treatment volume of 3/4 inch, and most will also recover, or become dry, within 72 hours. The retention basins are capable of being effectively maintained in that the side slopes and bottom of the basins can easily accommodate mowing equipment. For erosion control, staked hay bales and silt screens will be utilized on site during construction to prevent the off-site transport of soil material. Following construction, the retention basins will be vegetated with sod to prevent erosion. The District's criteria require that facilities which receive stormwater runoff from areas with greater than fifty percent of impervious surface shall include a baffle or other device for preventing oil and grease from leaving the system. DRA Nos. 1, 4, 5, and 8 are equipped with an oil and grease removal device called a baffle. The baffle is an acceptable engineering design for the removal of oil and grease from stormwater in a retention basin. The facility operation is uncomplicated. If the individual basins did fill due to a storm event greater than the 25-year, 24-hour or the 25-year, 96- hour in the landlocked basin, they would simply overflow into a DRA. No structures are involved to prevent flooding in large storm events. Water Quality Impacts The individual retention basin at each RV site is considered off-line because it does not discharge in the 25-year, 24-hour storm event. DRA Nos. 1, 2, 3, 4, 5, 6, and 7 are considered off-line because they do not discharge during the design storm. DRA No. 8 is considered off-line because of the diversion box which provides for the retention of the treatment volume and diversion of the larger storms. Off-line retention systems generally show greater pollutant treatment efficiencies than other types of stormwater treatment. The first 1/2 inch of runoff or the "first flush" of rainfall contains ninety percent of the pollutants from the site. SURFACE WATER Utilizing information and methodologies generally accepted by experts in the field of water quality, the District analyzed and projected the average surface water and groundwater quality of the discharge from the surface water management system for the proposed project. No data on runoff concentrations currently exists for RV parks. This analysis was based on a review of existing data on untreated runoff concentrations from three multifamily developments and one highway study. Because data from studies of multifamily residential and highway projects was used, the District's estimates of the untreated runoff concentrations for this project are conservative in that the actual concentrations are probably less than estimated. The District's analysis of the average quality of the discharge from the proposed system was also based on projecting the treatment efficiencies associated with the system. This analysis was done by reviewing data from documented studies previously conducted to ascertain the treatment efficiency of retention methods of stormwater treatment. Generally, retention of the first 1/2 inch of runoff removes eighty percent of the pollutants. On this project, a treatment efficiency of ninety-five percent was assumed based on the fact that the system is off-line treatment and a minimum of 3/4 inch of runoff from the site will be retained in the basins prior to discharge. The expected average untreated runoff concentrations were then educed by the expected treatment efficiencies to project post-treatment water quality of the discharge from the proposed system. These numbers were then compared to Chapter 17-302, Florida Administrative Code, water quality standards for Class III water bodies, and ambient water quality in Orange Lake. Orange Lake is classified as an OFW. Therefore, the proposed project cannot be permitted if it will cause degradation of that water body. The background data or ambient water quality data for phosphorous and nitrogen was taken from the Orange Lake Biological Report by the Florida Game and Freshwater Fish Commission in 1986. The ambient water quality for the other parameters in Table 2 of District Exhibit 2 was computed using eight years of data from a District monitoring station on Orange Lake. The projected average concentration for each constituent in the discharge from the system is less than the ambient water quality of Orange Lake. Therefore, the proposed surface water discharge will not violate state water quality standards in waters of the state. The post-development pollutant loading rates should be equal to or better than the pollutant loading rates from the use of the property as citrus or pastureland because the runoff is being retained on site and treated before being discharged. GROUNDWATER Groundwater discharges were reviewed by assessing the type of soil below the retention basin and the distance to the water table. The soil on the site contains some organic matter which is beneficial for treatment purposes. Based on the borings submitted by Celebrity, the water table, if any, is five feet or more below the bottom of any proposed retention basin. Runoff in the basin will percolate through the soil. Nutrients such as nitrogen and phosphorus will be taken up by the vegetation in the bottom of the basins. Metals will bind to the soil material below the basin. Oils and greases will be broken down through microbial degradation into nontoxic material. Groundwater discharges from the proposed system will not violate any applicable state groundwater quality standards. These standards will be met within the first three feet below the treatment basins. The standards will also be met by the time the groundwater discharge moves to the edge of the zone of discharge which is at the property boundary. The discharge from the proposed Celebrity project will not cause or contribute to a violation of state water quality standards in the receiving waters. SINKHOLES Sinkholes may form on the site. Sinkholes that form will probably be "cover subsidence" sinkholes. Cover subsidence sinkholes are those in which a void below the surface fills with the soil from above, causing a depression in the ground surface. There are four relict sinkholes on site. They are cover subsidence sinkholes. The sinkhole nearest the lake has water in the bottom. Stormwater runoff is directed away from the sinkhole. Any water which enters the sinkhole from the land surface or above will enter from the sky. The District has proposed criteria for stormwater systems in designated Sensitive Karst Area Basins. Those criteria are that 1) the water in the basins shall be no deeper than ten feet deep; 2) there should be at least three feet of unconsolidated material between the bottom of the basin and the top of the water table; and 3) the basins should be fully vegetated. The District currently applies these criteria as policy. In this project, the basins are shallow, ranging from ten inches deep at the RV sites to 2 1/2 feet in the DRAs. The basins have at least three feet of unconsolidated material between the bottom of the basin and the top of the water table. In the soil borings performed by Celebrity, the water table was shown to exist between five and fifty feet below land surface. The proposed project design meets or exceeds the proposed criteria for Sensitive Karst Area Basins. The basins will be fully vegetated or sodded with grass. Lineations or lineaments are solution features which may indicate a fracture of the underlying limestone. There may be a lineament on the site. There are other sinkholes in the area. If a cover subsidence sinkhole develops in an individual retention basin or DRA, stormwater, if any, will seep or percolate through the several feet of soil prior to reaching an aquifer. Most of the pollutants in the retention basin will meet groundwater quality standards prior to percolation and further treatment in the soil. OPERATION AND MAINTENANCE Special conditions Nos. 13, 14, and 15 on the permit will require Celebrity to inspect the system monthly for sinkhole development. If a sinkhole develops, Celebrity must notify the District within 48 hours of its discovery. Celebrity must submit a detailed repair plan within 30 days for written approval by the District. Celebrity proposes to repair any sinkholes that develop by a District- approved method. Celebrity Resorts, Inc., is a legally established corporation registered in Delaware and owns the subject property. Celebrity does not intend to subdivide the property but to sell memberships to use the property on a time-share basis. Celebrity will administratively operate the site by employing a park manager who will remain on the property 24 hours a day. If any problems occur with the basins, either he or his designee will be on site to respond quickly to the situation. The park manager will have a full-time maintenance staff which will operate the park. Celebrity will financially operate and maintain the proposed system using funds currently raised and in the future by membership fees. Celebrity is a publicly held corporation. Funds raised from the sale of stock, approximately $3,500,000, have paid for legal and administrative fees as well as the land purchase. Approximately $400,000 has been reserved to operate the facility. It will cost approximately $15,000 per month to run the park. Memberships will be sold for $300 per year. Part of the membership fees will go toward the general maintenance of the site. Maintenance of the proposed system will include regular mowing and monthly inspection for sinkholes and repair if necessary. WETLANDS IMPACTS OF THE PROJECT The property contains waters of the state wetlands and isolated wetlands. The waters of the state wetlands are those along the shore of Orange Lake. One isolated wetland exists on site in the sinkhole which is closest to the lake. The sinkhole has standing water in which lemna, or duckweed, is growing. Duckweed is a listed plant species in Section 16.1.1(2) of the Handbook. No construction is proposed in either the waters of the state wetlands or the isolated wetland. The District criteria require the review of impacts to off-site aquatic and wetland dependent species relative to the functions currently provided by the wetlands to these types of fish and wildlife. Since there will be no construction in the wetlands, there will be no impacts to the habitat, abundance and diversity, or food sources of off-site aquatic and wetland dependent species from this proposed project. No threatened or endangered aquatic and wetland dependent species were observed on site. The proposed permit application will not adversely affect natural resources, fish, or wildlife in a manner which is inconsistent with the District criteria. The proposed permit application will not adversely affect hydrologically-related environmental functions in a manner which is inconsistent with the District criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition filed by Concerned Citizens of Orange Lake Area be dismissed for lack of standing and that Celebrity Resorts, Inc., be issued a MSSW permit for its system as designed and proposed. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Concerned Citizens of Orange Lake Area 1. Proposed findings of fact 1-6 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. 1. Proposed findings of fact 1-38 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3-7(4-7); 8-20(8- 20); 21(2); 22-31(21-30); 32(16); and 33-107(31-105). COPIES FURNISHED: Crawford Solomon Qualified Representative Concerned Citizens of Orange Lake Post Office Box 481 Citra, FL 32681 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Nancy B. Barnard Attorney at Law St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
Findings Of Fact The land here involved is located at the southern end of the Acme Improvement District. The northeastern portion of the tract is owned by Petitioner Leonard H. Tolley, and comprises some 15 percent of the total acreage of the tract. The remainder of the tract is owned by Petitioner Strazulla Brothers. The entire tract includes Sections 3 and 4, Township 455 Range 41E and a parcel of land in The Township 44 1/2 S Range 41E adjacent to Sections 3 and 4 and comprises some 1400 acres. The Strazulla property was acquired by Warranty Deed from the Trustees, Internal Improvement Trust Fund, by Philip Strazulla and subsequently conveyed to Petitioner. In 1978 real property taxes on the Strazulla property here involved was $17,453.42. The tract is bounded on the west by the L-40 levee and canal, on the north by Acme Improvement District Dike and C-27 Canal; on the east by property owned by Miller American Industries and on the south by property owned by the South Florida Water Management District. By this application Petitioner proposes to place levees with their borrow canals on the east and south sides of the tract and to construct a 240 acre reservoir adjacent to the L-40 levee by erecting a reservoir retention levee some 1400 feet eastward of the L-40 levee. By installing a 100,000 gallon per minute pump station at the southeast corner of the proposed reservoir, the water presently standing on the property could be drained allowing the eastern portion of the tract to be converted to agricultural use and the remainder converted into 2.5 acre residential sites. The 1972 Palm Beach County land use plan recommended the area here involved be zoned Preservation/Conservation, which effectively precluded development of the property. At that time, Strazulla attempted to sell the property or trade it to a governmental agency for property that could be developed, but without success. In 1978, the Palm Beach County Land Use Advisory Board changed the 1972 land use recommendation to Residential Estate to allow a reasonable use of the property. (Exhibit 7). The property abutting Petitioners' property to the north has been drained and thereon is located an orange grove and, west of the orange grove, 5- acre residential homesites. The property to the east is being developed as residential homesites. The property west of the C-40 canal comprises the Loxahatchee National Wildlife Refuge consisting of some 221 square miles of traditional Everglades wetlands. The property to the south is owned by the South Florida Water Management District and is of a character similar to Petitioners' property. Some two to three miles south of Petitioners' property is an east-west canal. In 1900 the property here involved was located in the eastern part of the Florida Everglades and received the sheet flow that characterized the natural Everglades. This historic hydroperiod has been disrupted by levees at Lake Okeechobee and by various drainage and irrigation canals constructed to render the large tracts of land thereby drained suitable for agriculture. In the immediate vicinity of the property, the L-40 levee and canal, which enclose the Loxahatchee National Wildlife Refuge (hereafter referred to as the conservation area) form a barrier to any sheet flow from this property onto the conservation area. This levee and canal bars practically all interchange of waters between Petitioners' property and the conservation area and is in the process of destroying part of the historical eastern boundary of the Everglades. Erection of the proposed levee on the east and south boundaries of the property would effectively stop the drainage now coming to this property from the east and the drainage from this property to the southeast. The South Florida Water Management District (SFWMD) owns a right-of- way to the east of the L-40 levee which is located in the area proposed by Petitioner for its reservoir. Petitioners' application to encroach on this right-of-way with the proposed reservoir was denied by SFWMD. This denial was based on the environmental impact, county zoning regulations (since changed) and the as yet undetermined effect of back pumping into the conservation areas. (Exhibit 17). Specifically, SFWMD Staff Report (Exhibit 17) found the environmental impact of the project will be: This proposed truck farming operation and residential development will destroy approximately 1100 acres of valuable wetland habitat by drainage. The impact on the 240 acres (60 acres of SFWMD right-of-way) of emergent marsh within the proposed reservoir will be determined by the water level management of the impoundment. A drastic change in water depth or inundation period could result in severe alterations of the present wetlands. An additional 50 acres of marsh will be lost due to dredge and fill operations for levee construction. The entire tract is poorly drained and is under water for considerable portions of the year, with the westernmost portion containing the longest periods and greatest depths of standing water. The soil in the eastern portion of the property is predominantly sandy, with a gray sandy loam layer at depths of 20 to 40 inches. The soil in the central portion of the tract is predominantly sandy, with a gray sandy loam layer at depths greater than 40 inches. The soil in the western portion of the tract is sandy, with a black organic surface layer (muck) 8 to 15 inches thick, underlain by gray sandy layers. Vegetation in the property goes from some pine and cypress in the eastern portion to sawgrass marshes in the western portion, with numerous varieties of plants associated with wet soil and marshy areas. During the proposed construction adequate safeguards can be imposed to prevent excess turbidity from entering State waters. This property comprises a large tract of pristine Everglades habitat for both plants and animals, and is of great value to the ecology of the state. In its undeveloped state it provides a buffer zone of up to two miles eastward for the conservation area. Water presently on the property is predominantly rainwater and of better quality than the water in the C-40 or C-27 canals adjacent to the property. Use of the land for agricultural purposes would increase the risk of water quality degradation caused by water runoff carrying fertilizers, herbicides and pesticides into the proposed reservoir and/or perimeter canals. If excess water on the property is pumped into the C-40 or C-27 canals, degradation of those waters could occur. The proposed development was opposed by the Florida Game and Fresh Water Fish Commission, not only because it would remove these fresh water marshes from the ecosystem and take away an essential habitat for birds and aquatic life, but also would remove a surface water retention basin and vegetation filtration of runoff from adjacent uplands. (Exhibit 16). The Permit Application Appraisal Report (Exhibit 15) which recommended denial of the application found the property acts as a buffer between the agricultural lands to the east and the conservation area and development as proposed would remove this buffer; and that water quality standards may be degraded due to agriculture runoff from the developed property being pumped into C-40 canal. Specifics of how runoff from property would be controlled were not obtained by the Environmental Specialist who prepared Exhibit 15. Pumping the surface waters on the property into a reservoir would reduce the diurnal variation in dissolved oxygen levels in the water and thereby improve water quality from that aspect. Water in the reservoir would be of greater depth than presently exists, thereby reducing photosynthesis and its concomitant benefits to the water quality. On the other hand, the greater depths could result in fewer grasses and more open surface water, thereby allowing more aeration of the water by wind action. Herbicides degrade fairly rapidly, and holding them in a reservoir would allow time to degrade. Many pesticides are water insoluble and would settle to the bottom of the reservoir.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The SFWMD is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 573, Fla. Stat., and Title 40E, Fla. Admin. Code, as a multi-purpose water management district, with its principal office in West Palm Beach, Florida. The Navy has proposed construction of a naval housing facility on the Peary Court site (the "Site") in Key West, Florida. The Site is approximately 25.89 acres and will provide 160 housing units for junior enlisted Navy and Air Force personnel and their families. The Site is the center of a larger, 37 acre drainage basin. The Site was formerly the location of military housing. However, for the past 18 years, the Site had been used by the City of Key West, with the assent of the Navy, for active and passive recreation for city residents. The Site contains a cemetery of historic value and a former military housing structure now being used by the Navy Key West Federal Credit Union with an associated parking area of paved asphalt. On February 6, 1992, the Navy submitted an application for a Surface Water Management District General Permit for the Project. The proposed surface water management system (the "System") was designed by Rice Creekmore, a registered professional engineer, and his company Johnson, Creekmore, and Fabray. The proposed System utilizes the existing topography and incorporates a number of drainage control mechanisms to manage the run-off from the Site. The System employs inlets, swales and culverts to direct stormwater run-off into dry detention areas (ponds) for pretreatment prior to discharging into seven 24-inch Class V injection wells (drainage wells). As discussed below, these injection wells must be permitted by the Florida Department of Environmental Regulation ("FDER"). The dry pond areas utilize key ditches, bottom elevation 1.0' NGVD, in order to hydraulically connect all of the dry pond areas together into one dry system prior to overflowing into the drainage wells beginning at elevation 1.5' NGVD. In other words, the detention ponds are interconnected with pipes. The design includes only one point where run-off would be discharged from the Site during any storm equal to a 25 year, three day storm event. That discharge would occur at the lowest point of the Site at the corner of Eisenhower and Palm. The water would be discharged through a V notch weir (the "Weir") into the City's stormwater system. An existing 12" storm drain line at the discharge point will be replaced by a 13.5" by 22.0" Reinforced Concrete Elliptical Pipe culvert. As discussed in more detail below, the System is designed so as to detain 1" of run-off within the dry detention ponds prior to any discharge through the Weir. After review of the application and submittals, the SFWMD issued a Notice of Intent to issue General Permit and Stormwater Discharge Certification No. 44-00178-S (the "Permit") on September 29, 1992. Petitioner and Intervenor timely petitioned for an administrative hearing challenging the SFWMD decision to award the Permit. There is no dispute as to the standing of either Petitioner or Intervenor. The SFWMD has adopted rules that set forth the criteria which an applicant must satisfy in order for a surface water management permit to issue. The criteria are set forth in Rule 40E-4, Florida Administrative Code. Rule 40E-4.301(1)(m) and 40E-4.091(1)(a) incorporate by reference The Basis of Review for Surface Water Management Permit Applications within South Florida Water Management District - April, 1987, ("The Basis for Review"). The Basis for Review explicates certain procedures and information used by the SFWMD staff in reviewing a surface water management permit application. The SFWMD issues general permits for projects of 40 acres or less that meet specific criteria. All other projects must obtain individual permits which are reviewed by the District Board. The specific rules relating only to general permits are set forth in Rule 40E-40. In addition, the Basis for Review sets forth certain technical requirements which must be met for the issuance of a general permit including general construction requirements and special requirements for wetlands. The Basis for Review also sets forth criteria for how a proposed system should address water quantity and water quality issues. The SFWMD assumes that water quantity and water quality standards will be met if a system satisfies the criteria set forth in the Basis for Review. Water Quantity Criteria Rule 40E-4.301(a), Florida Administrative Code, requires an applicant to provide reasonable assurances that a surface water management system will provide adequate flood protection and drainage. The purpose of the water quantity criteria is to insure that pre- development flows and post-development flows are equal. The SFWMD requires calculations of a project's projected post-development flow to guarantee that the post-development discharge rate will not be in excess of the pre-development discharge rate. These calculations are based on a 25 year, 3 day storm event. There is no stormwater management system in place at the Project Site. The pre-development topography results in a pre-development discharge point from the Site at the corner of Eisenhower Drive and Palm Avenue. At this point, a discharge or outfall pipe leads into the City of Key West's stormwater management system. The City's system ultimately discharge into Garrison Bight, a nearly waterbody which is discussed in more detail below. At the time the Navy began planning for the Project, the Navy was told that the discharge pipe had a capacity of accepting water at a rate of 40 cubic feet per second ("CFS"). The Navy initially designed a system to utilize this capacity. Subsequently, it was discovered that, due to the size of the pipe at the discharge point and the capacity of the pipes downstream in the City of Key West's stormwater management system, the City would not allow or accommodate a discharge of more than 11 CFS from the Site. Thus, the System had to be redesigned so that the discharge to the City's system would not exceed 11 CFS. The system was redesigned to incorporate the seven (7) Class V injection wells. The injection wells are intended to insure that discharge from the Project into the City stormwater system through the surface water discharge pipe at Eisenhower Drive and Palm Avenue will not exceed 11 CFS. The injection wells introduce treated stormwater into the ground before it reaches the discharge point. The pre-development rate of surface water discharge from Peary Court in a 25 year, 72 hour storm event was 55 CFS. This rate was calculated based upon a site survey, a determination of the existing amount of pervious versus impervious surface area, and a calculation made through a generally accepted civil-engineering computer program. 1/ This predevelopment discharge is the amount of water which would be expected to discharge off-site after percolation occurs. The number and size of the injection wells for the proposed system were determined based upon tests of an on-site twelve-inch fire well. The results of the tests revealed that the on-site test well could manage in excess of 2 CFS. Due to test limitations, the exact capacity could not be measured, but the capacity was clearly more than 2 CFS. These results were then compared with data obtained from the engineering firm of Post, Buckeley, Schuh & Jernigan for installed wells in the Florida Keys of a similar nature and size to the wells in the proposed surface water management system. The Post, Buckeley test results indicated that 24-inch wells had a capacity of 31 CFS. In addition, the design engineer consulted with South Florida Well Drillers, who have drilled other wells in the Florida Keys including 24-inch wells at the Key West airport which were completed shortly before the application for this Project. South Florida Well drillers found the capacity of 24-inch wells in Key West to be in the 25 to 30 CFS range. Based upon the results of the test well and the related reports described above, the project engineer based his design of the surface water management system on an estimated well capacity of 8.4 CFS for each well. These estimates were submitted by the Navy in its application and were appropriately determined to be reasonable by the SFWMD staff. Indeed, the evidence established that 8.4 CFS was a conservative estimate. The seven injection wells, at an estimated capacity of approximately 8.4 CFS each, provide in excess of 56 CFS of well discharge capacity, which is beyond the necessary discharge volume for the Project. Limiting Condition No. 13 of the Permit requires the Navy to obtain a well capacity test from a Florida Registered Professional Engineer or Professional Geologist following the installation of the first Class V injection well at the Site. If the results of this test indicate that the capacity of the well is different than that submitted by the Navy in its application, the Navy must apply for a permit modification to provide a design which incorporates a representative injection well flow-rate and an appropriate number of wells for the Site. In view of the reasonableness of the capacity rates utilized for the wells, it is unlikely that the results of the capacity test will result in any major design change in the proposed surface water management system. The use of the injection wells in the proposed surface water management system will significantly reduce the amount of run-off which would otherwise reach Garrison Bight from the Site. After the System is completed, it is expected that the amount of run-off from the Site that will reach Garrison Bight will be only 20 percent of the predevelopment amount. In addition, because there has previously been no management of the run-off from the Site and surrounding areas, there has been a frequent flooding problem at the corner of Eisenhower Drive and Palm Avenue after heavy rain storms. The proposed surface water management system will accommodate the overflow of water which historically occurred when discharges from Peary Court and the surrounding areas could not be accommodated by the Key West storm water management system. Petitioner and Intervenor suggest that the effect of tidal flow on the capacity of the wells was not fully considered. The evidence established that the design engineer considered normal high tides in calculating groundwater elevations. Respondent's engineering experts have concluded that the proposed surface water management system is effectively designed to accommodate the Florida Keys' tidal flows. Petitioner and Intervenor offered no expert testimony to refute this conclusion and/or to establish that the tides would impact the effectiveness of the proposed surface water management system. In the event that an extremely high tide occurs at the time of a storm, the detention ponds may hold standing water for a short time. This water would not be discharged off-site. There is no evidence that tidal influences would in any way adversely affect the System's ability to uptake pollutants in the "first- flush". The Class V shallow injection wells are an integral part of the proposed Peary Court surface water management system. Without the injection wells it is not clear whether the Project could meet the SFWMD water quantity criteria. The SFWMD does not have authority to permit Class V injection wells. FDER must permit those wells. The Peary Court site is not the first Florida Keys' project permitted by the SFWMD which utilizes injection wells. The surface water management permits for the other projects were issued contingent upon obtaining the necessary permits for the injection wells. Special Condition No. 14 of the Permit provides that the Permit is conditioned on the Applicant obtaining the applicable permits from FDER for the injection wells. During the interim while the Navy is seeking the FDER permits, it should be required to retain all run-off on-site. If the Navy is not able to obtain the necessary FDER permits for the injection wells, the Navy should be required to either retain all run-off on-site or propose an alternate design to meet the SFWMD's water quantity requirements. A modified permit application with a new Notice of Intent should be required for any alternate design. The following Special Condition Number 14 was offered by the SFWMD at the hearing (language revised from original condition is highlighted and underlined): THIS PERMIT IS ISSUED BASED ON THE APPLICANT OBTAINING THE NECESSARY CLASS V INJECTION WELL PERMITS FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (FDER). THE PERMITTEE SHALL SUBMIT AN APPROVED CLASS V DRAINAGE WELL PERMIT FROM FDER PRIOR TO OPERATION OF THE SURFACE WATER MANAGEMENT SYSTEM. IN THE INTERIM, THE PERMITTEE SHALL CERTIFY TO THE DISTRICT THAT NO OFF-SITE DISCHARGE WILL OCCUR UNTIL THE APPROVED CLASS V DRAINAGE WELLS ARE IN OPERATION. IF THE SURFACE WATER MANAGEMENT SYSTEM DESIGN MUST BE MODIFIED AS A RESULT OF FDER REQUIREMENTS OR IF THE CLASS V INJECTION WELL PERMITS ARE NOT ISSUED, THE APPLICANT SHALL APPLY FOR A PERMIT MODIFICATION TO PROVIDE A SURFACE WATER MANAGEMENT SYSTEM DESIGN WHICH SHALL MEET DISTRICT CRITERIA IN EFFECT AT THAT TIME. The proposed additional language requires the Navy to certify that no off-site discharges will occur until the injection wells are permitted and are operating. This revised language should be added to Special Condition No. 14 to clarify that the injection wells must be in operation prior to any off-site discharge from the surface water management system. Maintenance of the surface water management system entails upkeep of the dry detention areas and routine grass cutting, as well as inspection of the injection wells on a periodic basis to guard against clogging and reduced capacity. The system is essentially designed to operate without direct surveillance or intervention. Injection wells do not require any additional maintenance over and above that which is routinely required for other types of surface water management systems. The injection wells will require routine maintenance to ensure that manholes and inlets do not become clogged. Limiting Condition No. 8 of the Permit requires that the surface water management system, including the injection wells, be maintained. At the hearing, the SFWMD proposed that a condition be added to the Permit to further clarify the maintenance requirements. A condition requiring long-term maintenance would be desirable and reasonable. A new special condition should be added to the Permit requiring long-term maintenance of grass swales and inspections of injection wells for clogging. Acceptable language for such a condition would be: SPECIAL CONDITION NO. 15 The permittee shall provide long-term maintenance of the surface water management system, encompassing the injection wells, including, but not limited to, (a) maintenance of the vegetation in the grass swales and detention ponds and (b) routine inspections of wells and discharge structures for clogging. Water Quality Criteria As noted above, there is no designed system for surface water management and/or water quality pretreatment at the Site in its undeveloped state. Surface water run-off that can not be managed by the City of Key West's storm water management system collects in roads adjacent to the Site, resulting in adverse water quality and quantity impacts to adjacent land and receiving waters. The applicable water quality criteria, contained in Rule 40E-4.301, Florida Administrative Code, require an applicant to provide reasonable assurances that a surface water management system will not cause adverse water quality impacts to receiving waters and adjacent lands, and will not cause discharge which results in any violation of the standards and criteria of Chapter 17-302 for surface waters of the state. Rule 40E-4.301 provides that: In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system is consistent with the State Water Policy as set forth in Chapter 17-40, Florida Administrative Code (40E-4.301(1)(h), Florida Administrative Code. Rule 17-40.420 provides in pertinent part: Minimum Stormwater Treatment Performance Standards. When a stormwater management system complies with rules establishing the design and performance criteria for stormwater management systems, there shall be a rebuttable presumption that such systems will comply with state water quality standards. The Department and the Districts, pursuant to Section 373.436, Florida Statutes, shall adopt rules that specify design and performance criteria for new stormwater management systems which: 1. Shall be designed to achieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards. The Basis for Review, which is incorporated into Title 40E, Florida Administrative Code, by reference, further delineates the applicable water quality permit criteria for surface water management systems. Regarding water quality criteria, the Basis for Review provides: 3.2.2.1 State standards - Projects shall be designed so that discharges will meet state water quality standards, as set forth in Chapter 17-3 [revised to 17-302], Florida Administrative Code. The SFWMD's water quality criteria do not require chemical testing of stormwater for residential projects. The SFWMD's water quality criteria require that the design of a surface water management system meet applicable design/technology based criteria. Section 3.2.2.2 of the Basis for Review contains the specific water quality criteria for the design of a surface water management system. The SFWMD allows applicants to design their surface water management system using either dry or wet detention or dry or wet retention, so long as the treatment provided by the system meets water quality and quantity criteria. Dry detention consists of a system of grass swales and vegetative- covered ponds which detain water at a predetermined rate prior to off-site discharge. Wet retention can contain canals, ditches, lakes or ponds to retain water on-site. If a system is designed to meet the criteria specified in 3.2.2.2(a) of the Basis for Review and incorporates Best Management Practices ("BMP's") for the type of system proposed, the SFWMD presumes that water quality standards will not be violated. In determining which system is appropriate for a particular site, water quantity (flooding impacts) and water quality impacts must be balanced. In some cases, water quantity concerns may preclude certain types of water quality treatment methods. At the hearing in this case, Petitioner and Intervenor suggested that retention is superior to detention in designing surface water management systems. The evidence presented in this case was insufficient to support this conclusion. In any event, this contention focuses only on water quality considerations. One drawback to retention is that it may have on-site flooding impacts. With respect to this Project, the evidence indicates that retention may not have been an acceptable alternative because of possible adverse water quantity impacts. The Navy's proposed surface water management system was designed to utilize dry detention with filtration for treatment of surface water prior to discharge into the injection wells and/or off-site. The design uses a system of grass swales and grass-covered detention ponds to detain and filter pollutants from the surface water as it makes its way through the dry detention system. The System is designed to utilize as many grass swale areas as possible to filter or treat the surface water before it reaches the detention ponds which provide further treatment. The swales restrict the flow of water to approxmiately one half to one foot per second which allows for percolation and a tremendous amount of filtration. The System utilizes the natural topography of the Site to direct water through the dry detention system to the lowest point of the Site at the corner of Eisenhower Drive and Palm Avenue. Any water which makes it to this last detention pond and is not drained into one of the injection wells can flow through the discharge structure (the Weir) at 11 CFS and ultimately make it into Garrison Bight. Petitioner and Intervenor have suggested that the design of the proposed System is defective because water discharged from the cul-de-sacs in the Project design will flow directly into detention ponds without passing over any of the grass swales. The permit criteria do not specify that all surface water must contact grass swales prior to reaching a detention pond. While greater filtration is achieved the longer the run-off remains in the system, the evidence established that the detention ponds by themselves provide sufficient water quality treatment. With respect to all but one of the cul-de-sacs, the water must pass through at least two detention ponds before it is discharged. Run-off from the cul-de-sac closest to the Weir will receive treatment only in the last discharge pond. Petitioner and Intervenor questioned whether the run- off from this last cul-de-sac will receive adequate treatment, in other words, whether the "first flush" will be adequately detained prior to discharge, especially in circumstances when the detention pond is already wet. However, the evidence was insufficient to establish that their concerns are justified and/or that this situation would constitute a violation of water quality standards. This cul-de-sac is only 100 ft in diameter and accounts for no more than 8 percent of the total run-off from the Site. After considering all of the evidence, it is concluded that the water from the cul-de-sacs will be adequately treated in accordance with the permit criteria prior to any discharge. In assessing the Navy's proposed surface water management system the following criteria from the Basis for Review are pertinent in determining whether the proposed System will provide appropriate water quality treatment: 3.2.2.2 Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof. . .: Wet detention volume shall be provided for the first inch of run-off from the developed project, or the total run-off of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. If the receiving waterbody, is a "sensitive receiving water," which would include an Outstanding Florida Water, the following additional criteria regarding direct discharges are applicable: 3.2.2.2 d. Projects having greater than 40 percent impervious area and which discharge directly to sensitive receiving waters shall provide at least one half inch of dry detention or retention pretreatment as part of the required retention/detention. The SFWMD interprets the permitting criteria as creating a rebuttable presumption that a surface water management system that provides detention in accordance with BMP's of the first inch (1") of run-off from a Site, commonly referred to as the "first-flush", will meet state water quality standards. The "first-flush" occurs at the onset of a rainfall when most pollutants run off paved areas and percolate into the grass swales. It is an accepted design parameter that the "first flush" contains 90 percent of the pollutants which will be collected in the run-off. The 90 percent of the pollutants in the first flush are consequently retained on-site through pure percolation and never reach the discharge facility. Although Petitioner and Intervenor suggest that dry detention does not provide this degree of filtration, the evidence was insufficient to support this contention. The proposed System for this Project provides treatment for the first one inch (1") of run-off from the developed Project, thereby meeting the permitting criteria for sensitive receiving waters. Intervenor and Petitioner contend that the development of this Project will necessarily result in a larger amount of pollutants in the run-off from the Site. They argue that the Applicant has not provided reasonable assurances that capturing 90 percent of the increased level of pollutants in the first flush will meet water quality standards. As noted above, compliance with the permit criteria creates a rebuttable presumption that water quality standards will be met. Insufficient evidence was presented to overcome this rebuttable presumption. In calculating the appropriate volume for the dry detention ponds, the Project engineer used the Site's percentage of impervious area. The percentage of impervious area was determined in accordance with SFWMD criteria. The calculations do not account for any percolation from the impervious areas even though much of that run-off will pass through swales and other grassy areas of the Site. In addition, there is a built-in buffer between the berm elevation around the ponds and the expected water level in the ponds. These factors confirm that there is significant additional capacity in the ponds which is an overage or safety net. In sizing the detention ponds, the project engineer also factored in additional off-site water that will be coming on-site from Palm Avenue. This water currently ponds on Palm Avenue contributing to a recurring flooding problem in the area. This off-site water will be routed through an inlet and pumped directly into on-site detention areas thereby reducing flooding on Palm Avenue and providing some treatment for off-site run-off that was not previously treated before entering the City's stormwater system. As noted above, additional water quality criteria requirements apply to projects which discharge to an Outstanding Florida Water. These additional criteria are set forth in paragraph 40 above. Outstanding Florida Water or OFW is the designation given exclusively by the FDER to certain waterbodies in Florida which have special significance, either for ecological or recreational reasons. Outstanding Florida Waters are afforded the highest degree of water quality protection. The criteria for designation of waters as Outstanding Florida Waters is found in Chapter 17-302, Florida Administrative Code. When the SFWMD initially reviewed the Permit application for this Project, it erroneously assumed that Garrison Bight, the ultimate receiving body for the waters discharged from the project through the City stormwater system, was an OFW. Although the SFWMD applied water quality criteria for OFW's when it reviewed the subject permit application, the evidence at the hearing in this case established that Garrison Bight is not an Outstanding Florida Water. A FDER representative, qualified as an expert in the designation of Outstanding Florida Waters, testified that the Outstanding Florida Water designation does not apply to certain waterbodies that were degraded at the time of designation or did not have the significance or pristine water quality that merit special protection. The designation also does not apply to artificial waterbodies. Artificial waterbodies are defined in Rule 17-302.700(9)(i), Florida Administrative Code, as a waterbody created by dredging or excavation or by the filing in of its boundaries on at least two sides. The FDER has formally determined that Garrison Bight is not an Outstanding Florida Water because Garrison Bight is an artificial waterbody in accordance with the definition. Furthermore, Garrison Bight is the site of extensive boating and marina activities. The water quality of Garrison Bight is currently degraded in comparison to ambient conditions and offshore/unconfined water. In sum, the evidence established that proposed surface water management system meets or exceeds the current permit criteria. Consequently, the water flowing into Garrison Bight from the Site will be significantly less and much cleaner after the proposed surface water management system is installed than it currently is without a designed surface water management system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the issuance of Surface Water Management General Permit No. 44-01785 in accordance with the Notice of Intent dated September 29, 1992 and the additional conditions noted in this Recommended Order. DONE AND ENTERED this 14th day of May, 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1993.
The Issue The issue is whether reasonable assurance has been provided by Sarasota County (County) for the issuance of Environmental Resource Permit (ERP) No. 44040881.000 authorizing the proposed alteration of a drainage ditch in the City of Sarasota (City), and whether Petitioner, SRQUS, LLC, was entitled to receive notice of the application pursuant to Florida Administrative Code Rule 40D-1.603(9)(a) and (b).
Findings Of Fact Parties Petitioner is a Florida limited liability corporation established in 2010 whose only members are Erika and Achim Ginsberg-Klemmt. In 2010, Petitioner purchased parcel 2009-16- 0015 in a tax deed sale. The parcel consists primarily of the submerged lands within the marina basin adjacent to the project area. Petitioner contends that the tax deed accords it ownership of the western most 130 feet of the existing ditch and that the County is not authorized to do work on that property. The City and County dispute this claim and it is now being litigated in circuit court. The City claims ownership or control of all of the project area to be addressed under the permit. The City authorized the County to apply for and construct the improvements authorized by the permit pursuant to an interlocal agreement with the County for consolidation of stormwater management responsibilities. The District is the agency charged with the responsibility of controlling water resources within its geographic boundaries and to administer and enforce chapter 373 and the rules promulgated in rule division 40D. The County submitted the application pursuant to an interlocal agreement with the City and will construct, operate, and maintain the project if the permit is issued. The Project U.S. Highway 41, also known as Tamiami Trail, travels through downtown Sarasota. During rainy months, between Fruitville Road and Second Street, U.S. Highway 41 experiences frequent roadway flooding. At the area where U.S. Highway 41 floods and between the Quay development to the north and the Ritz-Carlton Hotel to the south, is a stormwater ditch that drains west into a marina basin or bayou adjoining Sarasota Bay. However, it does not directly discharge into Sarasota Bay. The ditch is an upland cut drainage ditch approximately 650 feet in length and has been in existence for decades. The ditch is covered under a National Pollutant Discharge Elimination System (NPDES) Municipal Separate Stormwater Sewer System (MS4) permit issued to the County for the surrounding communities. Contaminants in the stormwater system are addressed under this permit. The ditch provides the only outfall for an approximately 46-acre heavily urbanized drainage basin for which stormwater is collected through the stormwater system. The stormwater is discharged into the drainage ditch through a double concrete box culvert under U.S. Highway 41 and is ultimately conveyed to a marina basin adjoining Sarasota Bay. The ditch is located in what was originally platted as the right-of-way for Eighth Street (now known as Second Street) on the Central Broadway subdivision plat within the City. Pursuant to an earlier exemption determination by the District, in 2004 the County conducted maintenance dredging on the easterly portion of the drainage ditch in an effort to remove the sediments and vegetation that had built up in the ditch over the years and reduced its flow. Since that time, the ditch has again filled in as a result of the significant amounts of sedimentation from stormwater flows entering and settling in the ditch and significant amounts of vegetation. Also, flooding on U.S. Highway 41 has become more frequent. In its current condition, the ditch is approximately eight to 12 feet wide and eight to 12 inches deep, is poorly drained due to the sedimentation and heavily overgrown mangroves and nuisance vegetation, and is tidally influenced. Accumulated sediments in the ditch are approximately four feet thick at the eastern end and become thinner at the western end of the ditch. In August 2009, staff from the City, County, District, and Florida Department of Transportation met at the site of the ditch to conduct a pre-application meeting and discuss possible ways of addressing flooding problems at this location. Aside from the ditch improvements being proposed by the County, the only other remedy is to pipe the ditch, which is cost-prohibitive and would defeat the County's goal of keeping as much desirable vegetation in place as possible. To address flooding and maintenance concerns, on September 8, 2011, the County submitted an ERP application to the District to seek authorization to dredge and undertake ditch improvements. The application identifies the ditch as being within City right-of-way. Included with the application was a letter from the City authorizing the County to apply for the ERP on behalf of the City pursuant to their interlocal stormwater agreement. At the time the application was filed, the County Property Appraiser's Office Geographic Information Systems tax parcel map showed the ditch and dredge area as being within the City right-of-way. The proposed project consists of reconstruction of the ditch with a defined channel to be lined with rip rap and geotextile fabric and the addition of two sediment sump boxes. Some of the mangroves and nuisance vegetation will be removed as necessary to construct the ditch improvements. Mangroves will be preserved where not impacted by construction. The Property Dispute Petitioner claims ownership of the western 130 feet of the right-of-way in which the ditch is located. As noted above, at the time the permit application was submitted, official property records showed the existing ditch as located within City right-of-way. Therefore, the County and District had no reason to doubt City ownership or control of the ditch area. A recently filed circuit court action seeks to determine ownership of a portion of the right-of-way in which the ditch is located. The circuit court has exclusive jurisdiction over all actions involving the titles and boundaries or right of possession of real property. District rules permit applicants to demonstrate sufficient ownership or legal control of the proposed project area in order to conduct the activities to be permitted. An applicant with eminent domain authority that does not have ownership or control for all property necessary for the proposed project may rely on its eminent domain authority to demonstrate sufficient ownership or legal control of the property necessary to construct the project. The permit will be conditioned to prohibit construction until all ownership or legal control of the property necessary to construct the project is acquired by the permittee. See Fla. Admin. Code R. 40D-4.301(1)(j); BOR § 2.0. The proposed permit contains Specific Condition No. 8 which enforces this requirement. Reasonable assurance of sufficient ownership or legal control of the project area is provided by virtue of the City's and County's eminent domain authority and the fact that the proposed permit prohibits construction until the permittee acquires all necessary ownership or other legal control of the property necessary to construct the project. Notice Requirements Petitioner contends the permit should be denied because it did not receive notice of the application pursuant to rule 40D-1.603(9). That rule provides that when the applicant is an entity with the power of eminent domain that does not have current ownership or control of the entire project area as described in the application, the applicant shall provide the property owner(s) identified in the application with so-called eminent domain noticing, which consists of (a) written notice of District receipt of the application, and (b) written notice of agency action on the application. Persons entitled to eminent domain noticing are owners of property located within the proposed project area as identified in the county property appraiser's records within 30 days prior to the filing of the application. The purpose of the District's eminent domain noticing provision is to provide notice and an opportunity to be heard to owners of property subject to being condemned or otherwise acquired by the applicant for part of the project area. As originally submitted, the application proposed some activities extending approximately ten feet into the marina basin and beyond the claimed City right-of-way. The permit application did not indicate City ownership or control of submerged lands within the marina basin. Consequently, in its request for additional information (RAI), the District advised that pursuant to rule 40D-1.603(9)(a) and (b), eminent domain notices to affected landowners would be required for any proposed easements over offsite property. As part of the application process, a seagrass study was prepared which showed seagrasses and oyster beds growing in the marina basin just beyond the end of the ditch, where some construction activity was proposed. Because seagrasses were observed growing at the end of the ditch, the County responded to the RAI by scaling back the project to confine activities to the City's right-of-way. With the change in project area, offsite easements were no longer necessary for the project. Thus, the project no longer required eminent domain noticing pursuant to rule 40D-1.603(9). The County and District acknowledge that Petitioner did not receive eminent domain notices. Although not provided notice, Petitioner nevertheless became aware of the permit application during the course of its own application process with the Department of Environmental Protection (DEP) for an ERP to construct a 4,760-square foot, ten-slip docking facility on its adjacent submerged lands in the marina basin. The lack of notice has not prevented Petitioner from challenging the project or has otherwise prejudiced it. Having received actual notice of the permit, Petitioner filed a timely objection and request for hearing in this matter. Petitioner contends that while it does not oppose the ditch dredging, it would have wanted an opportunity to suggest a re-design of the ditch to include a dingy dock and kayak launching facility. Although it has known of the project since at least May 21, 2012, when it filed its first petition, and probably several months earlier, Petitioner has not provided the County or District with any alternative designs to maximize the potential for recreational use of the drainage canal. There is no requirement for ERP applicants to provide alternative designs to maximize potential public recreational uses. Requiring the County to do so would impose requirements that go beyond the conditions for permit issuance. ERP Permitting Criteria To obtain an ERP, a permit applicant must provide reasonable assurance that the proposed activities will not cause adverse impacts to water quality, water quantity, and other environmental resources. For activities proposed in, on, or over wetlands and other surface waters, reasonable assurance must also be provided that such activities are not contrary to the public interest and do not cause unacceptable cumulative impacts upon wetlands and other surface waters. The conditions for issuance of an ERP are set forth in rules 40D-4.301 and 40D-4.302. The standards and criteria in the BOR are used to determine whether an applicant has met the conditions for issuance in those two rules. The parties have stipulated that the project either complies with the following conditions for issuance or that they are not applicable: 40D-4.301(1)(b), (c), (g), (h), (j), and (k) and 40D-4.302(1)(a)6. Also, rule 40D-4.302(1)(c) and (d), which concerns projects located in, adjacent to, or in close proximity to certain shellfish harvesting waters or which involve vertical seawalls, is not applicable to this matter. Based on the parties' Stipulation, at issue is whether reasonable assurance has been provided that the proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands (40D-4.301(1)(a)); will not adversely impact the value of functions provided to fish and wildlife by wetlands and other surface waters (40D-4.301(1)(d)); will not adversely affect the quality of receiving waters such that applicable state water quality standards will be violated (40D-4.301(1)(e)); and will not cause adverse secondary impacts to the water resources (40D-4.301(1)(f)). Petitioner also contends that the County has failed to give reasonable assurance that the project is not contrary to the public interest and that it will not cause unacceptable cumulative impacts, as required by rule 40D-4.302(1)(a) and (b). Water Quantity Impacts Rule 40D-4.301(1)(a) requires reasonable assurance be provided that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands. Existing and post-construction flows were modeled by the County using the accepted Inter-Connected Pond Routing model. Drainage calculations demonstrate that for the 25-year storm, the flood stage will be reduced by 1.94 feet, and for the 100-year storm event, by 1.75 feet, which will provide flood relief. Modeling results demonstrate a reduction in flood stages not just for U.S. Highway 41 but for other adjoining properties. The evidence establishes that while the project is not designed to eliminate all potential flooding, flooding during normal events will be reduced. Specifically, no adverse water quantity impacts were demonstrated with respect to Petitioner's adjacent submerged lands. Improvements proposed to the ditch will increase its storage capacity and allow water to flow more efficiently. By increasing the storage and hydraulic efficiency of the ditch without generating any additional runoff volume, the proposed activities will not cause adverse water quantity impacts and will have no adverse water quantity impacts on the receiving waters. Reasonable assurance has been demonstrated that the project will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not cause adverse flooding to on-site or off-site property, including adjacent submerged lands owned by Petitioner. Impact on Value of Functions Rule 40D-4.301(1)(d) requires that reasonable assurance be provided that project activities "will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District." The existing ditch provides limited ecological functions for fish and wildlife, as it contains significant levels of exotics and nuisance vegetation that provide little in the way of habitat. The removal of the nuisance vegetation, improved water circulation, and decreased sediments will be an improvement. The proposed ditch reconstruction and replanting with other vegetation will provide a more suitable habitat for younger life stages of fish such as sea trout, red fish, and hog chokers, which are species typically found in tidally influenced drainage systems. Overall, the proposed project will result in an improved habitat available for fish and wildlife. The project will retain as many of the existing mangroves as possible, thereby retaining the ecology of the mangrove wetlands. Reasonable assurance has been provided that the project will not adversely impact the value of functions being provided to fish and wildlife and will actually improve the ecological functions provided by the ditch. Quality of Receiving Waters Rule 40D-4.301(1)(e) requires that reasonable assurance be provided that the proposed ditch alterations will not adversely affect the quality of receiving waters such that water quality standards will be violated. The parties have stipulated that the project will not violate water quality standards set forth in rule chapters 62-522 and 62-550. Petitioner contends, however, that reasonable assurance has not been provided concerning possible impacts relating to surface water quality standards in rule chapter 62-302, the anti- degradation provisions of rule chapter 62-4, or the groundwater permitting and monitoring requirements of rule chapter 62-522. No evidence was presented by Petitioner that the activities will adversely affect the groundwater protection provisions of rule chapter 62-522. The proposed ditch alterations do not involve activities relating to these state water quality standards. Under BOR section 3.2.4, reasonable assurance must be provided for the short term and the long term that water quality standards are not violated. As to potential construction or short-term impacts, the proposed construction work involves the removal of sediments accumulated in the ditch, reconstruction of the ditch to be wider and deeper and within a more defined course, the addition of rip rap and geotextile fabric on the ditch bottom, and replanting of the ditch banks with salt- tolerant grasses and other vegetation to provide soil stabilization and erosion control. The proposed permit addresses the potential for turbidity during construction activities to cause short-term water quality violations by authorizing a temporary mixing zone and by requiring the installation of turbidity barriers and ongoing turbidity monitoring during construction. To further minimize the potential for any water quality violation during construction activities, construction methods will include the use of cofferdams or similar techniques to provide a barrier between the open water of the marina basin and the work being constructed within the ditch, which will be undertaken in segments starting at the eastern outfall at U.S. Highway 41. These provisions adequately address the potential for any short- term water quality impacts and are consistent with BOR provisions relating to short-term water quality. As to possible long-term water quality impacts, the evidence establishes that the proposed activities will not add any additional pollutants or new pollutant source to the receiving waters and will not cause or contribute to any violation of water quality standards. To the contrary, by removing existing stormwater sediments, which are known to contain pollutants, controlling sedimentation through collection of sediments in sediment sumps, and armoring the ditch channel to prevent erosion, water quality is expected to improve. The proposed sediment sumps to be added as a best management practice are appropriately sized to handle the approximately 5,600 pounds of sediments that accumulate annually in the ditch, as determined by annual pollutant load calculations provided by the County. The sumps will be located most efficiently at the outfall where the ditch begins. Preventing sediments from entering the receiving waters is one of the best things that can be done to improve water quality in nearby Sarasota Bay. Improvements in water quality are also expected to occur as a result of the addition of rip rap that will dissipate the flow energy, thereby allowing any remaining sediments to settle down, and the geotextile fabric that will keep soil in place and not allow it to float up. The sodding and replanting of the ditch embankments will also prevent side erosion from occurring, which erosion could add sediments in the ditch. Once constructed, the ditch will be regularly maintained by the County, with sediments to be cleaned out of the sump on a quarterly schedule. Any sediments settling on the rip rap and on plant vegetation would be cleaned out as needed, as determined by regular inspections. Petitioner contends that reasonable assurance has not been provided to show that water quality standards in rule chapter 62-302, and the anti-degradation provisions of rule chapter 62-4, will not be violated by the proposed activities. Its expert opined that the impact of the proposed activity on state water quality standards cannot be determined because no sampling of the receiving water was conducted, the permit does not require compliance monitoring, and the existing ditch sediments were not sufficiently analyzed. The evidence establishes that it can be reasonably presumed, without compliance monitoring or sampling, that the water flowing from the 46-acre urbanized watershed served by the ditch contains sediments and other pollutants typically associated with urban runoff. Most of the expected pollutants are contained within, or settle into the sediments that are deposited into, the ditch. By removing sediments through the use of adequately sized sediment sumps, slowing the water down to allow suspended solids to settle out within the ditch, adding geotextile fabric and rip rap covering the ditch bottom, establishing vegetation on the ditch sidebanks to prevent erosion, and implementing periodic maintenance through vacuum removal of collected sediments, the proposed activities will remove pollutants from the water flowing into the ditch and discharging into the marina basin and ultimately entering Sarasota Bay. Thus, it is reasonable to expect without sampling or monitoring that the proposed activities will improve water quality. In addition to identifying the positive benefits of the proposed activities, the evidence established that the proposed activities will not add a pollutant source to the receiving waters. This was not credibly disputed by Petitioner. Because the project does not generate pollutants, the proposed activities will not cause or contribute to a violation of state water quality standards. There is no reason to require pre-construction or baseline sampling to compare with post- construction sampling, as no pollutants will be generated. The removal of sediments and ongoing ditch maintenance will result in an improvement in water quality. Therefore, it can be reasonably assured without requiring sampling or monitoring that the activities will not result in any violations of state water quality standards. Secondary Impacts Rule 40D-4.301(1)(f) and BOR section 3.2.7 require that an applicant provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resource. As originally proposed, the project included activities extending beyond the end of the ditch and into the marina basin, where seagrasses and oyster beds are present. By avoiding impacts to these resources, the project also avoids any secondary impacts to manatees that may frequent Sarasota Bay. Turbidity control measures to be used during construction will also avoid secondary impacts to these resources. Petitioner provided no evidence that secondary impacts would occur as a result of the project. Reasonable assurance has been provided that the proposed activities will not result in any secondary impacts to the water resources. Public Interest Test Rule 40D-4.302(1)(a) requires an applicant to provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing certain criteria, or if such activity significantly degrades or is within an Outstanding Florida Water (OFW), that the activity will be clearly in the public interest. The proposed activities are not located within Sarasota Bay, a designated OFW. Petitioner provided no evidence that the proposed activities would significantly degrade that body of water. Therefore, the County need only demonstrate that the proposed activities are not contrary to the public interest. The parties have stipulated that rule 40D- 4.302(1)(a)6., which governs historical and archaeological resources, is not applicable to this matter. The remaining criteria at issue are whether the activity will adversely affect the public health, safety, or welfare or the property of others; whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; whether the activity will adversely affect the fishing or recreational values of marine productivity in the vicinity of the activity; whether the activity will be of a temporary or permanent nature; and the current condition and relative value of functions being performed by areas affected by the proposed activity. The evidence establishes that the project will reduce flooding during normal stages and remove sediments. By reducing the potential for roadway flooding and improving water quality through sediment reduction, the project will have a beneficial impact on public health, safety, and welfare, and will not adversely affect the property of others. Efforts were made to reduce or eliminate impacts to wetlands and other surface waters in the design of the project. Proposed activities will involve the removal of some of the existing mangroves. Based upon an analysis conducted pursuant to the Uniform Mitigation Assessment Manual, the unavoidable impacts to wetlands and other surface waters will result in a functional loss score of 0.08. Unavoidable wetland and other surface water impacts anticipated from the project will be appropriately mitigated through the use of a 0.08 credit from the Curry Creek Regional Offsite Mitigation Area (ROMA). The evidence demonstrates that the project will not adversely affect the value of functions provided by wetlands and other surface waters to conservation of fish and wildlife, including any endangered or threatened species, or their habitats and will actually result in an improvement in wetland and other surface water functions and habitat. The evidence establishes that the proposed activities will not adversely impact navigation or the flow of water and will not cause erosion or shoaling. The ditch reconstruction will prevent the possibility of shoaling at the downstream end of the ditch adjoining Petitioner's submerged lands by increasing the width of the ditch, slowing the water down, removing sedimentation along the ditch bottom, and reducing erosion through the planting of salt-tolerant sod and other vegetation along the ditch side banks. Petitioner presented no contrary evidence. No adverse impacts are expected to occur with respect to fishing or recreational values or marine productivity in the vicinity of the proposed activity. By removing sediments, the project will provide an improvement to fishing and recreational activities in the marina basin and Sarasota Bay. Petitioner raised concerns regarding the amount of floatable material that will be discharged from the ditch as a result of removal of mangroves. As provided in the permit plans, significant portions of the mangroves will remain undisturbed. Under current conditions, the ditch and mangroves do not prevent or trap all trash and floatables entering the ditch. On-site observations of existing conditions confirmed there is not a large amount of trash and floatables currently being retained by existing mangroves. Any temporarily retained floatables within the ditch area ultimately float out to Sarasota Bay with the tide. The evidence establishes that even with the removal of some mangroves, the project is not expected to result in an easier flow or increased amount of floatables entering the marina basin. Finally, because the project activities do not add floatable materials to the ditch, requiring the County to implement design changes to remove floatables would exceed what is necessary to meet the conditions for permit issuance. Petitioner also raised concerns regarding the levels of fecal coliform and the possibility of illicit connections to the stormwater collection outfalls to the ditch. The ditch is part of a MS4 permit that is regulated pursuant to NPDES Permit No. FLS000004 issued to the County. The NPDES permit governs stormwater discharges within the unincorporated portions of the County, the municipalities within the County, and that part of Longboat Key that is in Manatee County. The primary function of the MS4 permit is to address issues of water quality as they relate to stormwater discharges. The MS4 permit requirements would be the appropriate regulatory framework to address elevated fecal coliform, illicit connections, or other water quality concerns in the stormwater emanating from the drainage basin served by the ditch, and not the ERP regulatory program. Having weighed and balanced the six applicable criteria, and based upon the evidence presented, the County has provided reasonable assurance that the proposed activities will not be contrary to the public interest. Cumulative Impacts Rule 40D-4.302(1)(b) requires an applicant to demonstrate that the proposed activities will not cause unacceptable cumulative impacts on wetlands and other surface waters, as further described in BOR sections 3.2.8 through 3.2.8.2. BOR section 3.2.8 provides that if an applicant proposes to mitigate any adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets those impacts, then the regulated activity is considered to have no unacceptable cumulative impacts upon wetlands and other surface waters. Mitigation for unavoidable wetland impacts upon wetlands will be provided through the use of the 0.08 credit from the Curry Creek ROMA. The evidence establishes that the proposed mitigation fully offsets the impacts and is within the same drainage basin as the proposed impacts. No adverse cumulative impacts will occur with the project. Petitioner presented no contrary evidence of adverse cumulative impacts. Impaired Receiving Waters Petitioner contends that the project does not comply with the requirements of rule 40D-4.301(2) and related BOR section 3.2.4.5, which are applicable when existing ambient water quality does not meet state water quality standards. Rule 40D-4.301(2) provides that if an applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant shall meet the requirements of BOR section 3.2.4.5 and related sections cited in that provision. Together, these provisions require that where existing ambient water quality does not meet standards, the applicant must demonstrate that for the parameters that do not meet water quality standards, the proposed activity will not contribute to the existing violation. If it does contribute to the existing violation, mitigation measures will be required that result in a net improvement of the water quality in the receiving waters for the parameter that does not meet standards. The marina basin that is the receiving waters for the ditch has been identified by DEP as impaired due to levels of mercury in fish tissue. The evidence demonstrates that the project will not contribute to this water quality violation. Although not required to implement mitigation measures that will cause a net improvement of the levels of mercury in fish tissue, the evidence establishes that to the extent existing sediments contain mercury deposits, removal of the sediments reduce a source of mercury that can be ingested by fish in the receiving waters. Water Quality Certification Petitioner contends that Specific Condition No. 9 of the proposed permit, which expressly waives certification of compliance with state water quality standards, is contrary to Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and inconsistent with the legislative declaration of policy set forth in section 373.016(3)(f) and (j). As explained by unrefuted testimony of the District, the water quality certification provisions of Section 401 allow states an opportunity to address the water resource impacts of federally issued permits and licenses. Under Section 401, a federal agency cannot issue a permit or license for an activity that may result in a discharge to waters of the United States unless the affected state has granted or waived Section 401 certification. A state may grant, deny, or waive certification. Granting certification allows the federal permit or license to be issued. Denying certification prohibits the federal permit or license from being issued. Waiving certification allows the permit or license to be issued without state comment. Pursuant to rule 40D-4.101(4), an application for an ERP shall also constitute an application for certification of compliance with state water quality standards where necessary pursuant to Section 401. Issuance of the permit constitutes certification of compliance with water quality standards unless the permit is issued pursuant to the net improvement provision of section 373.414(1), or the permit specifically states otherwise. By letter dated February 2, 1998, to the United States Environmental Protection Agency, DEP has delegated to the state's five water management districts the authority to issue, deny, or waive water quality certifications under Section 401. DEP has also established categories of activities for which water quality certification will be considered waived. Under the DEP delegation, water management districts may waive water quality certification for four situations, one of which is when the permit or authorization expressly so provides. This is still current DEP direction. The types of permitting decisions which constitute the granting of water quality certification and the types of activities for which water quality certification could be considered waived are also addressed in the current Operating Agreement between the United States Army Corps of Engineers (USACE), DEP, and the five water management districts. According to both DEP guidance and the water management district agreement with the USACE, water quality certification will be considered waived when the permit or authorization expressly so states. The District most often expressly waives water quality certification for permits issued pursuant to the net improvement provisions and for projects that discharge into impaired waters. Proposed Specific Condition No. 9 of the permit expressly waives water quality certification due to the fact that the receiving waters are listed by DEP as impaired. Conditioning of the permit in this manner is consistent with DEP guidance and District practice under these circumstances. Although water quality certification for federal permitting review purposes is waived, the project must still comply with water quality requirements by demonstrating that the proposed activities do not cause or contribute to a violation of state water quality standards or if the activities contribute to an existing violation, that a net benefit is provided. The evidence establishes that the project will not cause or contribute to a violation of water quality standards and is not expected to contribute to the receiving water impairment of elevated mercury levels in fish tissue. While not required, the project is nevertheless expected to have a positive benefit on overall water quality and likely will reduce mercury levels in fish tissue by removing the sediments that contain metals such as mercury. The District's waiver of water quality certification is consistent with Section 401, the legislative declaration of policy set forth in section 373.016(3)(f) and (j), and applicable regulatory practices for Clean Water Act water quality certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the issuance of ERP No. 44040881.000 to the City and County, as joint permittees. DONE AND ENTERED this 7th day of May, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May 2013. COPIES FURNISHED: Blake C. Guillery, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Erika Ginsberg-Klemmt SRQUS, LLC 3364 Tanglewood Drive Sarasota, Florida 34239-6515 Achim Ginsberg-Klemmt SRQUS, LLC 3364 Tanglewood Drive Sarasota, Florida 34239-6515 Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637-6758 Alan W. Roddy, Esquire Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236-6808 Michael A. Connolly, Esquire Fournier, Connolly, Warren & Shamsey, P.A. One South School Avenue, Suite 700 Sarasota, Florida 34237-6014
The Issue The issues to be determined in these consolidated cases are whether All Aboard Florida – Operations, LLC (“the Applicant”), and Florida East Coast Railway, LLC (“FECR”), are entitled to an Environmental Resource Permit Modification authorizing the construction of a stormwater management system and related activities to serve railway facilities, and a verification of exemption for work to be done at 23 roadway crossings (collectively referred to as “the project”).
Findings Of Fact The Parties Petitioners Martin County and St. Lucie County are political subdivisions of the State of Florida. Petitioners have substantial interests that could be affected by the District’s proposed authorizations. Intervenor Town of St. Lucie Village is a political subdivision of the State of Florida. Intervenor has substantial interests that could be affected by the District’s proposed authorizations. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company based in Miami. All Aboard Florida is part of a group of corporate entities formed for the principal purpose of developing and operating express passenger train service in Florida. Co-applicant Florida East Coast Railway, LLC, is a Florida limited liability company based in Jacksonville. FECR owns the existing railway corridor the passenger train service will use between Miami and Cocoa. South Florida Water Management District is a regional agency granted powers and assigned duties under chapter 373, part IV, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The proposed activities are within the boundaries of the District. Background The objective of the All Aboard Florida Project is to establish express passenger train service connecting four large urban areas: Miami, Fort Lauderdale, West Palm Beach, and Orlando. Most of the passenger service route, including the portion which will pass through Martin County and St. Lucie County, will use an existing railroad right-of-way used since the late 1800s. The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It supported passenger and freight operations on shared double mainline tracks from 1895 to 1968. The passenger service was terminated in 1968 and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The passenger service will use the FECR right-of-way from Miami to Cocoa and then turn west on a new segment to be constructed from Cocoa to Orlando. The railway corridor will be operated as a joint facility, with passenger and freight trains sharing the double mainline tracks. The Applicant is upgrading the portion of the corridor between Miami and Cocoa by, among other things, replacing existing railroad ties and tracks, reinstalling double mainline tracks, and improving grade crossings. The Applicant is also installing Positive Train Control systems which provide integrated command and control of passenger and freight train movements and allow the trains to be directed and stopped remotely or automatically in the event of operator error or disability, or an obstruction on the track. The All Aboard Florida Project is being developed in two phases, Phase I extends from Miami to West Palm Beach, and Phase II from West Palm Beach to Orlando. This proceeding involves a segment within Phase II, known as Segment D09, which runs from just north of West Palm Beach to the northern boundary of St. Lucie County. The railway corridor in Segment D09 passes through Jonathan Dickinson State Park in Martin County and the Savannas Preserve State Park, parts of which are in both Martin County and St. Lucie County. Surface waters within these state parks are Outstanding Florida Waters (“OFWs”). The railway in Segment D09 also passes over the St. Lucie River using a bridge that can be opened to allow boats to pass. The Applicant plans to run 16 round trips per day between Miami and Orlando, which is about one train an hour in each direction, starting early in the morning and continuing to mid-evening. In 2013, the District issued the Applicant an exemption under section 373.406(6), which exempts activities having only minimal or insignificant adverse impacts on water resources. The 2013 exemption covers proposed work in approximately 48 of the 65 miles which make up Segment D09, and includes replacement of existing tracks and re-establishment of a second set of mainline tracks where they were historically located. The 2013 exemption covers all but 24 of the roadway crossings within Segment D09 where work is to be done in connection with the All Aboard Florida Project. In 2015, the District issued the Applicant a general permit under rule 62-330.401, which authorizes activities that are expected to cause minimal adverse impacts to water resources, for the installation of fiber optic cable along the rail bed within Segment D09. The 2013 exemption and 2015 general permit were not challenged and became final agency action. The Proposed Agency Actions The ERP Modification covers work to be done in approximately 17 of the 65 miles which make up Segment D09. The work will consist primarily of replacing existing tracks, installing new tracks, making curve modifications in some locations to accommodate faster trains, culvert modifications, and work on some fixed bridge crossings over non-navigable waters. The 2017 Exemption at issue in this proceeding covers improvements to 23 of the 24 roadway crossings that were not covered by the 2013 exemption. Proposed improvements at Southeast Florida Street in Stuart will be permitted separately. The improvements covered by the 2017 Exemption include upgrading existing safety gates and signals; installing curbs, guardrails, and sidewalks; resurfacing some existing paved surfaces; and adding some new paving. Petitioners argue that, because the District’s staff report for the ERP Modification states that the ERP does not cover work at roadway crossings, track work at roadway crossings has not been authorized. However, the staff report was referring to the roadway improvements that are described in the 2017 Exemption. The proposed track work at the roadway crossings was described in the ERP application and was reviewed and authorized by the District in the ERP Modification. “Segmentation” Petitioners claim it was improper for the District to separately review and authorize the proposed activities covered by the 2013 exemption, the 2015 general permit, the ERP Modification, and the 2017 Exemption. Petitioners contend that, as a consequence of this “segmentation” of the project, the District approved “roads to nowhere,” by which Petitioners mean that these activities do not have independent functionality. Petitioners’ argument is based on section 1.5.2 of the Applicant’s Handbook, Volume 1,1/ which states that applications to construct phases of a project can only be considered when each phase can be constructed, operated, and maintained totally independent of future phases. However, the activities authorized by the four agency actions are not phases of a project. They are all parts of Phase II of the All Aboard Florida Project, which is the passenger railway from West Palm Beach to Orlando. Section 1.5.2 is not interpreted or applied by the District as a prohibition against separate review and approval of related activities when they qualify under the District’s rules for exemptions, general permits, and ERPs. Much of Phase II is outside the District’s geographic boundaries and, therefore, beyond its regulatory jurisdiction. The District can only review and regulate a portion of Phase II. The District is unable to review this portion as a stand-alone railway project that can function independently from other project parts. The Proposed Stormwater Management System Where the Applicant is replacing existing tracks or re- establishing a second set of tracks, it will be laying new ties, ballast, and rail on previously-compacted earth. In those areas, no stormwater management modifications were required by the District. The Applicant’s new proposed stormwater management system will be located in a five-mile area of the corridor where an existing siding will be shifted outward and used as a third track. In this area, swales with hardened weir discharge structures and skimmers will be installed to provide stormwater treatment beyond what currently exists. The weir discharge structures will serve to prevent erosion at discharge points. The skimmers will serve to capture any floating oils or refuse. Because the FECR right-of-way is not wide enough in some three-track areas to also accommodate swales, the proposed stormwater management system was oversized in other locations to provide compensating volume. The District determined that this solution was an accepted engineering practice for linear systems such as railroads. Petitioners argue that the Applicant’s proposed stormwater management system is deficient because some of the proposed swales do not meet the definition of “swale” in section 403.803(14) as having side slopes equal to or greater than three feet horizontal to one foot vertical (3:1). The statute first defines a swale to include a manmade trench which has “a top width-to-depth ratio of the cross-section equal to or greater than 6:1.” The swales used in the proposed stormwater management system meet this description. Petitioners showed that the plans for one of the 46 proposed swales included some construction outside the FECR right-of-way. In response, the Applicant submitted revised plan sheets to remove the swale at issue. The Emergency Access Way The ERP application includes proposed modifications to portions of an existing unpaved emergency access way which runs along the tracks in some areas. The access way is a private dirt road for railroad-related vehicles and is sometimes used for maintenance activities. At the final hearing, Petitioners identified an inconsistency between an application document which summarizes the extent of proposed new access way construction and the individual plan sheets that depict the construction. The Applicant resolved the inconsistency by correcting the construction summary document. Petitioners also identified an individual plan sheet showing proposed access way modifications to occur outside of the FECR right-of-way. This second issue was resolved by eliminating any proposed work outside the right-of-way. Petitioners believe the proposed work on the access way was not fully described and reviewed because Petitioners believe the access way will be made continuous. However, the access way is not continuous currently and the Applicant is not proposing to make it continuous. No District rule requires the access way segments to be connected as a condition for approval of the ERP. Water Quantity Impacts An applicant for an ERP must provide reasonable assurance that the construction, operation, and maintenance of a proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. The District’s design criterion to meet this requirement for water quantity management is a demonstration that the proposed stormwater system will capture the additional runoff caused during a 25-year/3-day storm event. The Applicant’s proposed stormwater system meets or exceeds this requirement. Petitioners argue that the Applicant failed to provide reasonable assurance because the ERP application materials did not include a calculation of the discharge rates and velocities for water discharging from the swales during the design storm. The ERP application contains the information required to calculate the discharge rates and velocities and the Applicant’s stormwater expert, Bruce McArthur, performed the calculations and testified at the final hearing that in the areas where there will be discharges, the discharge rates and velocities would be “minor” and would not cause adverse impacts. The District’s stormwater expert, Jesse Markle, shared this opinion. Petitioners argue that this information should have been provided to the District in the permit application, but this is a de novo proceeding where new evidence to establish reasonable assurances can be presented. Petitioners did not show that Mr. McArthur is wrong. Petitioners failed to prove that the proposed project will cause adverse water quantity impacts, flooding, or adverse impacts to surface water storage and conveyance capabilities. Water Quality Impacts To obtain an ERP, an applicant must provide reasonable assurance that the construction, operation, and maintenance of a regulated project will not adversely affect the quality of receiving waters, such that state water quality standards would be violated. The District’s design criteria for water quality required the Applicant to show that its proposed stormwater system will capture at least 0.5 inches of runoff over the developed area. To be conservative, the Applicant designed its proposed system to capture 1.0 inch of runoff in most areas. Under District rules, if a stormwater system will directly discharge to impaired waters or OFWs, an additional 50 percent of water quality treatment volume is required. The proposed stormwater system will not directly discharge to either impaired waters or OFWs. In some locations, there is the potential for stormwater discharged from the proposed stormwater system to reach OFWs by overland flow, after the stormwater has been treated for water quality purposes. The Applicant designed its proposed stormwater system to provide at least an additional 50 percent of water quality treatment volume in areas where this potential exists. To ensure that the proposed construction activities do not degrade adjacent wetlands, other surface waters, or off-site areas due to erosion and sedimentation, the Applicant prepared an Erosion and Sediment Control Plan. Temporary silt fences and turbidity barriers will be installed and maintained around the limits of the construction. The District’s design criteria for water quality do not require an analysis of individual contaminants that can be contained in stormwater, except in circumstances that do not apply to this project. Compliance with the design criteria creates a presumption that water quality standards for all potential contaminants are met. See Applicant’s Handbook, V. II, § 4.1.1. Although not required, the Applicant provided a loading analysis for the proposed swales which could potentially discharge overland to impaired waters or OFWs. The analysis compared pre- and post-development conditions and showed there would be a net reduction in pollutant loading. Petitioners believe the pollutant loading analysis was inadequate because it did not specifically test for arsenic and petroleum hydrocarbons. However, the analysis was not required and adequate treatment is presumed. Petitioners did not conduct their own analysis to show that water quality standards would be violated. Petitioners’ expert, Patrick Dayan, believes the compaction of previously undisturbed soils in the emergency access way would increase stormwater runoff. However, he did not calculate the difference between pre- and post-construction infiltration rates at any particular location. His opinion on this point was not persuasive. Petitioners failed to prove that the proposed project will generate stormwater that will adversely affect the quality of receiving waters such that state water quality standards would be violated. The preponderance of the evidence shows the project complies with District design criteria and will not cause water quality violations. Soil and Sediment Contamination Petitioners argue that the ERP Modification does not account for the disturbance of existing contaminants in soils and sediments that could be carried outside of the right-of-way and into OFWs. Petitioners’ argument is based on investigations by their geologist, Janet Peterson, who collected soil, sediment, and surface water samples at 13 sites along the FECR rail corridor in the vicinity of OFWs, or surface waters that eventually flow into OFWs. During her sampling visits, Ms. Peterson saw no visual evidence of an oil spill, fluid leak, or other release of hazardous materials. Ms. Peterson compared her soil sample results to the Residential Direct Exposure Soil Cleanup Target Levels (“SCTLs”) established in rule 62-777. The SCTLs are the levels at which toxicity becomes a human health concern and the residential SCTLs assume soil ingestion of 200 mg/day for children, and 100 mg/day for adults, 350 days a year, for 30 years. Some of the soil sampling results showed exceedances of SCTLs, but the SCTLs are not applicable here because none of the sample sites are locations where children or adults would be expected to ingest soil at such levels for such lengths of time. Petitioners did not show that the contaminants are likely to migrate to locations where such exposure would occur. Ms. Peterson compared her soil sample results to the Marine Surface Water Leachability SCTLs, but she did not develop site-specific leachability-based SCTLs using DEP’s approved methodology. Nor did she show that the proposed project will cause the soils to leach the contaminants. Ms. Peterson collected sediment samples from shorelines, but not where construction activities are proposed. She compared her sediment sample results to the Florida Department of Environmental Protection’s (“DEP”) Sediment Quality Assessment Guidelines (“SQAGs”). These guidelines are not water quality standards. Any exceedance of these guidelines requires further analysis to determine potential water quality impacts. Ms. Peterson did not conduct the analysis. Ms. Peterson acknowledged that there are numerous sources for these pollutants at or near her sample sites, such as high-traffic roads, vehicular bridges, commercial and industrial facilities, boatyards, and golf courses. She did not establish baselines or controls. Ms. Peterson collected surface water samples at seven sites, some of which were located outside the FECR right-of-way. The results showed levels of phosphorous and nitrogen above the criteria for nutrients at some locations. Phosphorous, nitrogen, and the other nutrients are prevalent in the waters of Martin County and St. Lucie County and come from many sources. Petitioners’ evidence focused on existing conditions and not expected impacts of the proposed project. The evidence was insufficient to prove the proposed project will cause or contribute to water quality violations. Functions Provided by Wetlands and Other Surface Waters An applicant for an ERP must provide reasonable assurance that a proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Petitioners claim the Applicant and District should not have relied on Florida Land Use Cover and Forms Classification System (“FLUCCS”) maps to identify and characterize wetlands and other habitat areas because the maps are too general and inaccurate. However, the FLUCCS maps were not used by the Applicant or District to evaluate impacts to wetlands or other habitats. The Applicant began its evaluation of impacts to wetlands and other habitat areas by field-flagging and surveying the wetland and surface water boundaries in the project area using a GPS device with sub-meter accuracy. It then digitized the GPS delineations and overlaid them with the limits of construction to evaluate anticipated direct impacts to wetlands and other surface waters. The District then verified the delineations and assessments in the field. The Applicant and District determined that there are a total of 4.71 acres of wetlands within the FECR right-of-way, including tidal mangroves, freshwater marsh, and wet prairie. They also determined the proposed project will directly impact 0.35 acres of wetlands, consisting of 0.09 acres of freshwater marsh and 0.26 acres of mangroves. Petitioners contend that the Applicant failed to account for all of the project’s wetland impacts, based on the wetland delineations made by their wetland expert, Andrew Woodruff. Most of the impacts that Mr. Woodruff believes were not accounted for are small, between 0.01 and 0.05 acres. The largest one is acres. The Applicant’s delineations are more reliable than Mr. Woodruff’s because the methodology employed by the Applicant had greater precision. It is more likely to be accurate. Petitioners argue that the 2013 exemption and the 2015 general permit did not authorize work in wetlands and, therefore, the impacts they cause must be evaluated in this ERP Modification. However, Petitioners did not prove that there are unaccounted-for wetland impacts associated with those authorizations. Any impacts associated with best management practices for erosion control, such as the installation of silt fences, would be temporary. The District does not include such temporary minor impacts in its direct, secondary, or cumulative impacts analyses. Most of the wetlands that would be directly impacted by the ERP Modification are degraded due to past hydrologic alterations and soil disturbances from the original construction and historical use of the FECR railway corridor, and infestation by exotic plant species. Most of these wetlands are also adjacent to disturbed uplands within or near the rail corridor. The functional values of most of the wetlands that would be affected have been reduced by these disturbances. The Applicant provided reasonable assurance that the project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Secondary Impacts Section 10.2.7 of the Applicant’s Handbook requires an applicant to provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity (a) will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters; (b) will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland-dependent listed animal species for nesting or denning by these species; (c) will not cause impacts to significant historical or archaeological resources; and (d) additional phases for which plans have been submitted, and closely linked projects regulated under chapter 373, part IV, will not cause water quality violations or adverse impacts to the functions of wetlands or other surface waters. The proposed work will be entirely within the limits of the existing railway corridor where secondary impacts to wetlands and other surface waters caused by noise, vibration, fragmentation of habitats, and barriers to wildlife have existed for decades. The preponderance of the evidence shows that any increase in these kinds of impacts would be insignificant and would not reduce the current functions being provided. Because the affected wetlands are not preferred habitat for wetland-dependent, endangered, or threatened wildlife species, or species of special concern, and no such species were observed in the area, no adverse impacts to these species are expected to occur. Petitioners contend that adverse impacts will occur to the gopher tortoise, scrub jay, and prickly apple cactus. These are not aquatic or wetland-dependent species. However, the preponderance of the evidence shows any increase in impacts to these species would be insignificant. When the train bridges are closed, boats with masts or other components that make them too tall to pass under the train bridges must wait for the bridge to open before continuing. Petitioners contend that the current “stacking” of boats waiting for the bridges to open would worsen and would adversely impact seagrass beds and the West Indian Manatee. However, it was not shown that seagrass beds are in the areas where the boats are stacking. The available manatee mortality data does not show a link between boat stacking and boat collisions with manatees. Mr. Woodruff’s opinion about increased injuries to manatees caused by increased boat stacking was speculative and unpersuasive. The preponderance of the evidence shows that the adverse effects on both listed and non-listed wildlife species, caused by faster and more numerous trains would be insignificant. The activities associated with the 2013 exemption and the 2015 general permit for fiber optic cable were based on determinations that the activities would have minimal or insignificant adverse impacts on water resources. These determinations are not subject to challenge in this proceeding. The Applicant provided reasonable assurance that the secondary impacts of the project will not cause or contribute to violations of water quality standards, adversely impact the functions of wetlands or other surface waters, adversely impact the ecological value of uplands for use by listed animal species, or cause impacts to significant historical or archaeological resources. Elimination and Reduction of Impacts Under section 10.2.1.1 of the Applicant’s Handbook, if a proposed activity will result in adverse impacts to wetlands and other surface waters, the applicant for an ERP must implement practicable design modifications to eliminate or reduce the impacts, subject to certain exceptions that will be discussed below. Petitioners argue that this rule requires the Applicant and District to evaluate the practicability of alternative routes through the region, routes other than the existing railway corridor in Segment D09. As explained in the Conclusions of Law, that argument is rejected. The evaluation of project modifications to avoid impacts was appropriately confined to the railway corridor in Segment D09. The Applicant implemented practicable design modifications in the project area to reduce or eliminate impacts to wetlands and other surface waters. Those modifications included the shifting of track alignments, the elimination of certain third-track segments, and the elimination of some proposed access way modifications. However, the project qualified under both “opt out” criteria in section 10.2.1.2 of the Applicant’s Handbook so that design modifications to reduce or eliminate impacts were not required: (1) The ecological value of the functions provided by the area of wetland or surface water to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value; and (2) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and provides greater long-term ecological value. Mitigation The Applicant proposes to mitigate for impacts to wetlands by purchasing mitigation credits from four District- approved mitigation banks: the Bluefield Ranch, Bear Point, Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a regional off-site mitigation area which implements a detailed management plan and provides regional long-term ecological value. The number of mitigation credits needed to offset loss of function from impacts to wetlands was calculated using the Modified Wetland Rapid Assessment Procedure (“MWRAP”) or Wetland Assessment Technique for Environmental Review (“WATER”), as prescribed in the state permit for each mitigation bank. Applying these methods, the Applicant is required to purchase mitigation credits. The Applicant proposed to mitigate the adverse impacts to freshwater marsh wetlands by purchasing 0.01 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, and 0.06 freshwater herbaceous credits from the Loxahatchee Mitigation Bank. The adverse impacts to tidal mangrove wetlands would be mitigated by purchasing 0.12 saltwater credits from the Bear Point Mitigation Bank, and 0.02 saltwater credits from the F.P.L. Everglades Mitigation Bank. The Applicant committed to purchase an additional 0.29 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, for a total of 0.50 mitigation credits. The proposed mitigation implements a plan that will provide greater long-term ecological value than is provided by the wetlands that will be impacted. The Applicant proved by a preponderance of the evidence that the project complies with the District’s mitigation requirements. Cumulative Impacts To obtain an ERP, an applicant must provide reasonable assurance that a regulated activity will not result in unacceptable cumulative impacts to water resources. This assurance can be provided by proposing to fully mitigate the impacts within the same basin. However, when an applicant proposes mitigation in another drainage basin, the applicant must demonstrate that the regulated activity will not cause unacceptable cumulative impacts. The proposed project will adversely impact 0.02 acres of freshwater marsh wetlands and 0.21 acres of tidal mangrove wetlands in the St. Lucie River basin. The impacts to the freshwater marshes must be mitigated out-of-basin because there are no mitigation banks in the basin which offer freshwater herbaceous mitigation credits. The proposed project will adversely impact 0.07 acres of the freshwater marshes and 0.05 acres of the mangrove wetlands in the Loxahatchee River basin. Those impacts must also be mitigated out-of-basin because there are no mitigation banks in the Loxahatchee River basin. Because some of the Applicant’s proposed mitigation must be provided out-of-basin, the ERP application included a cumulative impact analysis. The analysis evaluated whether the proposed project, when considered in conjunction with other possible development within the St. Lucie River and Loxahatchee River drainage basins, would result in unacceptable cumulative impacts considering each basin as a whole. There are approximately 10,068 acres of freshwater marshes within the St. Lucie basin, of which an estimated 4,929 acres are not preserved and would be at risk of potential future development. The proposed project will adversely impact 0.02 of those acres, which is only 0.0004 percent of the total at-risk acreage. There are about 34,000 acres of freshwater marshes within the Loxahatchee River basin, of which an estimated 7,463 acres are at risk of future development, and approximately 564 acres of tidal mangrove wetlands, of which an estimated 75 acres are at risk of future development. The project will adversely impact 0.07 acres of the freshwater marshes (0.0009 percent), and 0.05 acres of the tidal mangrove wetlands (0.0667 percent). Petitioners contend the Applicant’s analysis did not account for impacts from proposed activities authorized in the 2013 and 2015 general permit. However, Petitioners failed to prove there are unaccounted-for wetland impacts. The preponderance of the evidence supports the District’s determination that the proposed project will not cause unacceptable cumulative impacts to wetlands and other surface waters. Public Interest When an applicant seeks authorization for a regulated activity in, on, or over wetlands or surface waters, it must provide reasonable assurance that the activity will not be contrary to the public interest, or if the activity is within or significantly degrades an OFW, is clearly in the public interest, as determined by balancing the following criteria set forth in section 373.414(1)(a): Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources; and The current condition and relative value of functions being performed by areas affected by the proposed activities. The proposed work is not within an OFW, but entirely within the FECR corridor. The potential for overland flow and indirect impacts to OFWs is addressed by additional treatment of the stormwater prior to discharge. The proposed project would not significantly degrade an OFW. Therefore, the applicable inquiry is whether the project is contrary to the public interest. Factor 1: Public Safety, Safety, and Welfare Petitioners contend that the proposed project will adversely affect public health, safety, and welfare by impacting water quantity, water quality, and certain non-environmental matters such as emergency response times, traffic congestion, and potential train collisions with pedestrians and vehicles. Potential environmental impacts have been addressed above and, by a preponderance of the evidence, the District and the Applicant showed that such impacts would be insignificant or would be mitigated. As to the potential for non-environmental impacts associated with train operations, it is explained in the Conclusions of Law that the public interest test does not include consideration of non-environmental factors other than those expressly articulated in the statute, such as navigation and preservation of historical or archaeological resources. However, because evidence of non-environmental impacts was admitted at the final hearing, the issues raised by Petitioners will be briefly addressed below. The regulatory agency with specific responsibility for railroad safety is the Federal Railroad Administration (“FRA”). The FRA reviewed the safety features associated with the proposed passenger train operations, and approved them. Public safety will be enhanced at roadway crossings because of the proposed improvements and the use of modern technology in monitoring and managing the movement of trains. Petitioners contend that the addition of the passenger rail service will impede emergency response times in Martin County and St. Lucie County due to more frequent roadway closures. However, freight trains currently impede emergency response times due to their length and slow speed. The passenger trains will be much shorter in length and faster so that roadway crossing closures for passing passenger trains will be much shorter than for freight trains. The ERP Modification and 2017 Exemption do not affect freight train operations. The preponderance of the evidence shows that passenger rail service is unlikely to cause a material increase in the occurrence of circumstances where an emergency responder is impeded by a train. The current problem must be addressed through changes in freight train operations. Petitioners also contend that the passenger rail service will interfere with hurricane evacuation. The persuasive evidence does not support that contention. Train service would cease when a hurricane is approaching. Petitioners contend the trains will have to be “staged” on either side of the two moveable bridges while other trains cross, thereby blocking road intersections. However, this was a matter of speculation. The Applicant does not propose or want to stage trains at the bridges. Petitioners contend that the project will cause hazards to boaters on the St. Lucie River because there will be more times when the train bridge will be closed to allow the passage of passenger trains. Although there were many statistics presented about the number of boats affected, the evidence was largely anecdotal with respect to the current hazard associated with boaters waiting for the passage of freight trains and speculative as to the expected increase in the hazard if shorter and faster passenger trains are added. Factor 2: Conservation of Fish and Wildlife As previously found, the proposed activities will not adversely affect the conservation of fish and wildlife, including threatened or endangered species. The preponderance of the evidence shows the project will have only insignificant adverse impacts on water resources and wildlife. Factor 3: Navigation of the Flow of Water Petitioners claim the project will hinder navigation on the St. Lucie and Loxahatchee Rivers because of the increase in bridge closures if passenger trains are added. The U.S. Coast Guard is the agency with clear authority to regulate the opening and closing of moveable train bridges over navigable waters in the interests of navigation. Petitioners’ insistence that the District address the bridge openings is novel. No instance was identified by the parties where this District, any other water management district, or DEP has attempted through an ERP to dictate how frequently a railroad bridge must open to accommodate boat traffic. The Coast Guard is currently reviewing the project’s potential impacts on navigation and will make a determination about the operation of the moveable bridges. It has already made such a determination for the moveable bridge which crosses the New River in Ft. Lauderdale. Petitioners point to section 10.2.3.3 of the Applicant’s Handbook, which states that the District can consider an applicant’s Coast Guard permit, and suggest that this shows the District is not limited to what the Coast Guard has required. However, Section 10.2.3.3 explains the navigation criterion in terms of preventing encroachments into channels and improving channel markings, neither of which encompasses the regulation of train bridges. The preponderance of the evidence shows the project would not cause harmful erosion or shoaling or adversely affect the flow of water. Factor 4: Fishing, Recreational Values, and Marine Productivity The preponderance of the evidence shows that there would be no adverse impacts or only insignificant impacts to fishing or recreational values and marine productivity. Factor 5: Permanent Impact The proposed project will have both temporary and permanent impacts. The temporary impacts include the installation of silt fences and turbidity barriers designed to reduce water quality impacts and impacts to functions provided by wetlands and surface waters. The impacts due to track installation, construction and rehabilitation of the non-moveable bridges, at-grade crossing improvements, and stormwater system improvements are permanent in nature. The permanent impacts have been minimized and mitigated. Factor 6: Historical or Archaeological Resources Petitioners do not contend that the project will adversely affect significant historical or archaeological resources. Factor 7: Wetland Functions in Areas Affected Because the proposed work is within the limits of an existing railway corridor where impacts have been occurring for decades, and the majority of the wetlands to be affected are of a low to moderate quality, there would be only a small loss of functional values and that loss would be fully mitigated. Public Interest Summary When the seven public interest factors are considered and balanced, the proposed project is not contrary to the public interest. Even if Petitioners’ non-environmental issues are included, the project is not contrary to the public interest. Compliance With Other Permit Conditions The project is capable, based on accepted engineering and scientific principles, of performing and functioning as proposed. The Applicant demonstrated sufficient real property interests over the lands upon which project activities will be conducted. It obtained the required consent for proposed activities relating to bridge crossings over state-owned submerged lands. The Applicant provided reasonable assurance of compliance with all other applicable permit criteria. Exemption Verification for Roadway Crossings The Applicant’s ERP application included a mixture of activities which required an individual permit, as well as activities in roadway crossings which the Applicant claimed were exempt from permitting. Pursuant to section 5.5.3.4 of the Applicant’s Handbook, the Applicant requested a verification of exemption as to certain work to be done within 23 of those 24 roadway crossings. The District determined that the improvements for which an exemption was sought were exempt from permitting under rule 62-330.051(4)(c) for minor roadway safety construction, rule 62-330.051(4)(d) resurfacing of paved roads, and rule 62-330.051(10) for “construction, alteration, maintenance, removal or abandonment of recreational paths for pedestrians, bicycles, and golf carts.” The preponderance of the evidence shows the proposed work qualifies for exemption under these rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order that: approves Environmental Resource Permit Modification No. 13-05321-P on the terms and conditions set forth in the District’s Corrected Proposed Amended Staff Report of May 11, 2017; and approves the Verification of Exemption dated March 31, 2017. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application number 07256-F be APPROVED subject to the special conditions set forth above. DONE AND ORDERED this 15th day of July 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 15th day of July 1987.
The Issue The issue in this case is whether the Southwest Florida Water Management District (the District) should grant the application of the Misty Creek Country Club, Inc. (the Club), to modify MSSW Permit No. 400037.
Findings Of Fact Background Petitioners are owners of property adjacent to Lake No. 7 of the Misty Creek Country Club in a development called The Preserves at Misty Creek-- specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A (Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots 119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen Higgins), and lot 121 (William and June Spence). Respondent, the Misty Creek Country Club (the Club), operates a golf course and country club located at The Preserves at Misty Creek under a 99-year lease with Gator Creek Lands, the developer of The Preserves at Misty Creek. Existing System Design and Application for Permit Modification In 1985, Respondent Southwest Florida Water Management District, issued a surface water management permit for development of a 730-acre residential development and golf course. The District subsequently issued to the Club operation phase authorization for the surface water management system associated with the golf course portion of the development in March of 1992. Under the original permit, Lake No. 7 was part of the overall stormwater management system for the golf course. The lake is approximately seven and half to eight acres in size and is part of a total drainage basin of approximately twenty-eight acres. As originally designed, Lake No. 7 is a detention with filtration system. An underdrain in the side of the bank provides water quality treatment, filtering out oils and greases, fertilizers and other contaminants. A control elevation of 31.02 was established for Lake No. 7 through construction of a weir. Between elevation 31.00 and 31.02, water discharges through the underdrain system providing water quality treatment. Above elevation 31.02, water flows over the control structure into Lake No. 6, and ultimately discharges to Cow Pen Slough, which is Class III waters of the state. The Club presently has a water use permit from the District which allows withdrawal of groundwater for irrigation of the golf course. Groundwater is stored in Lake No. 7 prior to use for irrigation when needed to augment water in the lake. Special Condition Number 2 of the water use permit required the Club to investigate the feasibility of using reclaimed or reuse water in lieu of groundwater for irrigation purposes at the golf course. As a result of the investigation required by Special Condition Number 2 of the water use permit, the Club filed an application with the District to modify its surface water management permit to allow for the introduction of reuse water into Lake No. 7. Under that application, there would have been no significant modifications to the stormwater management system. Reuse water would have replaced groundwater as a source for augmenting water in the lake when needed for irrigation. An eight-inch service line would convey the reuse water to Lake 7, and a float valve would control the introduction of reuse water into Lake No. 7. When water levels in the lake fell below elevation 30.5', the float valve would open the effluent line to allow introduction of reuse water into the lake; when the water elevation in the lake reached 31.0', the float valve would shut off the flow of water. There would be gate valves on either side of the structure that could be manually closed, if necessary, to stop the flow of reuse water into the lake if the float valve malfunctioned. Club personnel would have access to the gate valves and could manually stop the flow of reuse water into the lake if necessary. On August 9, 1995, just days prior to the final hearing in this matter, the Club proposed to modify its application to make certain structural changes in the design of the surface water management system. Specifically, the Club proposed to plug the window in the weir, raise the elevation of the weir or control structure to elevation 33.6, raise the elevation of the berm along the north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the underdrain. The purpose of the proposed modifications to the design of the system was to assure that no discharge from Lake No. 7 would occur up to and including the 100-year storm event. A 100-year storm event is equal to 10 inches of rainfall in a 24-hour period. Source and Quality of Reuse Water The Club also entered into an agreement with Sarasota County to accept reuse water from the county's new Bee Ridge wastewater treatment facility. That agreement specifies the terms under which the Club will accept reuse water from the County. The County's Bee Ridge facility is presently under construction and is not yet operating. As permitted by the Department of Environmental Protection, the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment system which is a licensed process to provide advanced waste treatment. The construction permit establishes effluent limits for the facility that are comparable to a level of treatment known as advanced secondary treatment, but the County Commission for Sarasota County has instructed the County staff to operate the Bee Ridge facility as an advanced waste treatment plant. Advanced waste treatment is defined by the quality of the effluent produced. For advanced waste treatment, the effluent may not exceed 5 milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids (TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total phosphorus. It also requires high level disinfection. Advanced secondary treatment requires the same level of treatment for TSS but the limit for nitrates is 10 milligrams/Liter. High level disinfection is also required for advanced secondary treatment. In Florida, reuse systems require a minimum of advanced secondary treatment. High level disinfection is the level of treatment that generally is accepted as being a reasonable level of treatment. The Bee Ridge permit issued to Sarasota County identifies the Club as one of the recipients of reuse water for irrigation. Condition Number 21 of that permit provides that the use of golf course ponds to store reuse water is not authorized under the County's permit until issuance of a separate permit or modification of the County's permit. Although the District did not require Misty Creek to submit any information about the modification of the County's permit, there was no basis for assuming that the County permit could not be modified. To the contrary, the permit provides that authorization may be obtained by permit modification. Under the late modification to the Club's application, the reuse water transmission line and float valve system, with backup manual gate valve system, is unchanged. So are the water elevations at which the float valve system will automatically introduce reuse water into Lake 7 and shut off. Sarasota County already has constructed the water transmission system that would deliver reuse water to the Club. At the request of the District, the Club provided copies of the drawings of the float valve structure as permitted by the Department of Environmental Protection. The District did not require certified drawings of that structure. But the District will require the Club to provide as-built drawings following completion of construction prior to the introduction of reuse water into Lake No. 7. Property Ownership Each of the Petitioners owns a residential lot adjacent to Lake No. 7. At the time of the Petitioners' purchase of the individual residential lots, the Club leased certain property immediately west of Lake No. 7 from the developer of The Preserve at Misty Creek. The leased premises included a piece of land extending into the lake known as the 19th green. As a result of negotiations between the Club and the developer, it was determined that the 19th green would be removed and the land between the approximate top of bank of Lake No. 7 and the private residential lots would be released from the Club's lease. The developer subsequently conveyed the property that had been released from the Club's lease to the individual lot owners (the "A" parcels listed in Finding 1). At the time of the conveyance of the additional parcels, the attorney for the developer prepared deeds for each individual parcel with a metes and bounds description off the rear of the residential lots to which they were being added. While the Club's application for modification of its surface water management permit was being processed by the District, counsel for Petitioners provided the District with copies of the individual deeds and questioned whether the Club had ownership or control of the land which was the subject of the application sufficient to meet the District's permitting requirements. In response to a request for information regarding the ownership of the property that was the subject of the application, the Club submitted to the District a topographical survey prepared by Mr. Steven Burkholder, a registered professional land surveyor with AM Engineering. The topographical survey depicted: the elevation of the water in the Lake No. 7 on the day that the survey was conducted, labeled "approximate water's edge"; the elevation of the "top of bank"; and the easternmost line of private ownership by Petitioners. Mr. Burkholder determined the line of private property ownership by reproducing a boundary survey attached to the individual deeds conveying the additional parcels to the Petitioners. He testified that he was confident that the topographical survey he prepared accurately represented the most easterly boundary of the Petitioners' ownership. The elevation of the line of private ownership as depicted on the survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to 35.2. The elevation of the line labeled "top of bank" ranges from a high of 35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be controlled by the elevation of the modified control structure which is proposed to be set at elevation 33.6. After modification of the surface water management system to retain the 100-year storm event, at no time would water levels in the lake rise above the existing elevation of the "top of bank." The Petitioners testified that they believed that they owned to the water's edge or edge of the lake, but Mr. Burkholder testified that a property boundary could not be determined based on an elevation depicting the water's edge because that line would change as the level of the water rose and fell. The Petitioners also presented evidence that the developer's attorney made representations to them that their ownership extended to the "approximate high water line." But there appears to be no such thing as an "approximate high water line" in surveying terms. Where the boundary of a lake is depicted on a survey it generally is depicted from top of bank to top of bank. In any event, the legal descriptions of the parcels conveyed to the Petitioners were not based on a reference to either a water line or the water's edge or the lake at all. Instead, the legal descriptions were based solely on a metes and bounds description off the rear of the residential lots. Notwithstanding some contrary evidence, if the Petitioners owned to the water's edge, such ownership would require the Petitioners to consent to or join in the amended application for the modification of the Club's surface water management permit. Information regarding the ownership or control and the legal availability of the receiving water system is required as part of the contents of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code. The amended application requires the ability to "spread" Lake 7 in the direction of the Petitioners' property. If the Petitioners own the property on which the Club intends to "spread" Lake 7 in order to make the amended application work, the Petitioners must consent or join. The issue of the legal ownership and control of the Petitioners and the Club currently is in litigation in state circuit court. If the state circuit court determines that the easterly boundary of the "A" parcels lies to the east of the "top of bank," consideration would have to be given to modifying any permit issued to the Club to insure that the designed "spread" of Lake 7 in a storm event up to and including a 100-year storm event does not encroach on the Petitioners' property. District Permit Requirements The District has never before processed an application for a surface water management permit allowing commingling of storm water and reuse water. The District applied Chapter 40D-4, Florida Administrative Code, in reviewing the Club's permit application. There are no specific provisions in Rule 40D-4 or the District's Basis of Review for Surface Water Management Permit Applications that address the commingling of stormwater and reuse water; on the other hand, no rules of the District prohibit the introduction of other types of water into a stormwater treatment pond so long as the requirements of Rule 40D-4 are met. The District has the authority to allow stormwater and reuse water to be commingled. Section 40D-4.301, Florida Administrative Code, contains the conditions for issuance of a surface water management permit. Permitting Criteria In order to obtain a surface water management permit to commingle stormwater and reuse water in Lake 7, the Club must provide reasonable assurances that the proposed modifications to its existing system will provide adequate flood control and drainage; not cause adverse water quality and quantity impacts on receiving waters and adjacent lands; not result in a violation of surface water quality standards; not cause adverse impacts on surface and groundwater levels and flows; not diminish the capability of the lake to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code; not cause adverse environmental impacts to wetlands, fish and wildlife or other natural resources; be effectively operated and maintained; not adversely affect public health and safety; be consistent with other public agency's requirements; not otherwise be harmful to water resources of the District; and not be against public policy. No surface or groundwater levels or flows have been set for this area of the District, so that permit criterion is not applicable to the Club's application. The Club's application will not impact wetlands or fish and wildlife associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are no wetlands regulated by the District in the project site. The Club has submitted to the District an operation and maintenance plan for the modified surface water management system. The operation and maintenance plan is in compliance with the District's permitting criteria contained in Rule 40D-4.301(1)(g). The District's regulation with respect to the requirement that a project not adversely affect the public health and safety is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The permitting criterion that a project must be consistent with the requirements of other public agencies was met by inclusion in the permit of Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition No. 3, which require that the surface water management permit be modified if necessary to comply with modifications imposed by other public agencies. The District's regulation with respect to the requirement that a project not otherwise be harmful to the water resources within the District is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The District's regulation with respect to the requirement that a project may not be against public policy is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with that criterion. The project will not have an adverse impact on water quality or quantity in receiving waters or adjacent lands. Under the District's regulations, the project would not be permittable if it caused flooding on property owned by other persons. Two concerns regarding off-site flooding were raised by Petitioners: first, the potential for flooding of the Petitioners' property; and, second, the potential for flooding of secondary systems connecting to Lake No. 7 such as private roads in the development. The project would violate the requirements of Section 40D-4.301(1)(a), Florida Administrative Code, which requires that a proposed project provide adequate flood protection and drainage, if raising the weir and berm elevation to 33.6 would cause the level of water in Lake No. 7 to move laterally up the bank and encroach on property owned by Petitioners. However, the Club has given reasonable assurances that the Petitioners own only to the "top of bank" and that raising the weir elevation to 33.6 would not cause water levels to rise above the "top of bank" of the lake. If it is determined in pending state circuit court proceedings that the Petitioners own beyond the "top of bank," any permit for the Club's project might have to be modified to avoid flooding the Petitioners' property. With respect to potential flooding of secondary systems, such as adjacent roadways, raising the elevation of water in Lake No. 7 would decrease the capacity of the storm sewers draining into the Lake. However, the proposed modifications would not increase the area of impervious surface in the drainage basin or decrease the size of the lake, and water levels in the roadways probably would not rise much higher than under present circumstances. The existing storm sewer system is only designed for a 10-year storm event, so the supplemental effect on roadway flooding from retaining a 100-year storm event in Lake No. 7 probably would be negligible. The Club gave reasonable assurances that any increase in water levels on the roadways from the proposed modifications would not be considered a significant adverse effect because it still would not affect public access. Sarasota County's land development regulations allow flooding in streets of up to 12 inches for a 100-year storm event, nine inches for a 25-year storm event, and six inches for a 10-year storm event. No portion of the proposed project area is within the 100-year floodplain. The project will not have an adverse effect on water quantity attenuation or cause flooding of the Petitioners' property or secondary systems, such as adjacent roadways. Petitioners have protested the effect that this project will have on water quality within Lake No. 7, itself. Surface water quality standards do not apply within a stormwater pond. Stormwater ponds are essentially pollution sinks intended to receive polluted runoff. Where there is no discharge from a pond, water quality treatment is irrelevant. Lake 7 is not a "water resource within the District" pursuant to Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j) limits the issues to be considered by the District to downstream water quality, water quantity, floodplain impacts, and wetlands impacts. The commingling of wastewater effluent treated to a level of advanced secondary or advanced waste treatment (reuse water) would improve water quality within a stormwater treatment pond at least 90 to 95 percent of the time. Stormwater is very low quality compared to reuse water. In most respects, reuse water also will be better quality than the well water presently being used to augment the pond. It is expected to be better quality than unimpacted water in the receiving waterbody with respect to nitrogen content and only slightly worse with respect to phosphorus content. The addition of reuse water should not promote more algal growth; rather, it should reduce the likelihood of algal growth. It also should not increase the incidences of fish kills in Lake 7. Nor should it alter the nutrient concentrations in Lake 7 so as to result in an imbalance of the natural population of aquatic flora and fauna. In the draft permit originally proposed to be issued to the Club, permit conditions required that water quality be monitored at the point of discharge to waters of the state. This requirement was eliminated from the revised permit as the District determined that it was not necessary in light of the modification of the system to retain the 100-year storm event. The subject design does not account for recovery of the water quality treatment volume within a specified period of time. However, there is no such requirement in District rules when a pond entirely retains the 100-year storm event, as is the case with this project. Even if there were a discharge from the surface water management system in a storm event up to and including a 100-year storm event, the Club gave reasonable assurances that water quality standards in the receiving waterbody would not be violated because of the effects of dilution. This project will not cause discharges which result in any violations of applicable state water quality standards for surface waters of the state. Based on a number of factors, including the peak rate factor, the curve number and the seasonal high water elevation, the water level in Lake 7 would reach an elevation of 33.57 if a 100-year storm event occurs. This results in the retention of the 100-year storm in Lake 7. The District only considers the 100-year storm event, by itself. It does not consider other rainfall events before or after it. However, the District does presume that ponds are at their seasonal high water level when the 100-year storm event occurs and that the ground is saturated. With respect to the seasonal high water level, there was substantial conflicting testimony. The Club's consultant used a seasonal high water level of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical engineering report prepared by Ardaman & Associates. A seasonal high water elevation of 31.0' was also used in the original permit application in 1985. In concluding that the seasonal high water level should be 31.0, the Ardaman report relied on several assumptions, including plugging of the underdrain and overflow weir and no discharges into or pumping out of the lake. These assumptions were made to establish an historical water level. The Petitioners' consultant disputed the determination in the Ardaman report that the seasonal high for Lake No. 7 was 31 on the grounds that the report indicated groundwater levels of 32.8 on three sides of the lake. He also felt that water levels would rise in the lake over time as a result of it being, allegedly, a closed system. While he did not have an opinion as to what the appropriate seasonal high should be, he felt it would be higher than 31 but lower than 32.8. However, he did no modeling with respect to calculating a seasonal high water level and would normally rely on a geotechnical engineer, such as Ardaman & Associates, to calculate seasonal high water levels. The District generally does not receive information as extensive and detailed as that included in the Ardaman report when it reviews permit applications. Among other things, the Ardaman report indicates a gradient across Lake No. 7 which makes the determination of the seasonal high for the lake difficult. The groundwater flow gradient results from the fact that the elevation of Lake No. 6 is approximately three feet lower than the elevation in Lake No. 7. The elevation determined by Ardaman may well be conservative in that the seasonal high of 31 is above the midpoint of the gradient. Although Lake 7 will be designed as an essentially closed system, it will have inflow from rainfall, surface runoff, introduction of reuse water and groundwater inflow, and outflows by way of evapotranspiration, withdrawal for irrigation purposes, and groundwater outflows. To alleviate any concerns about the validity of the seasonal high, it would be reasonable to include a permit condition requiring the Club to monitor the water level in Lake 7 on a daily basis, using staff gauges, after modification of the control structure. If such monitoring indicated that the seasonal high water level exceeds 31.0, the District could consider options to address that situation, including reducing the level at which reuse water is introduced into the lake or requiring water quality monitoring at the point of discharge to receiving waters. Groundwater quality is regulated by the Department of Environmental Protection, not by the District. The DEP permit issued to Sarasota County for disposal of reuse water at the Club golf course requires the installation of two groundwater monitoring wells, one in fairly close proximity to Lake No. 7. The Overlooked Pond There is a small retention pond northwest of Lake 7, near lot 113. Neither the Club nor the District considered the effect of the Club's late modification of its application on the retention pond northwest of Lake 7 and adjacent properties. Lake 7 and the retention pond to its northwest are connected by an equalizer pipe. As a result, water levels in the pond will be affected by water levels in Lake 7. There was no evidence as to the elevations of the banks of the retention pond. There was no evidence as to whether the modifications to the Club's application will result in flooding of properties adjacent to the pond. There was no evidence that the Club owns or controls the retention pond or the properties adjacent to it that might be affected by flooding that might result from the modifications to the Club's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the Club's amended application. RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. 1.-2. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease. Accepted and incorporated. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease and from which the western extent of the Club's leasehold interests in Lake 7 can be determined. Accepted and incorporated. But the topographic survey, together with other evidence, does show the eastern extent of the Petitioners' property in relation to the "top of bank" of Lake 7 and the western extent of the Club's leasehold interests in Lake 7. Rejected as contrary to the greater weight of the evidence that uses must be "specifically authorized" in that the lease authorizes the use of the premises for a "golf course," which is presumed to include uses inherent to the operation of a golf course that may not be further specified in the lease, such as drainage facilities, like Lake 7, and facilities for irrigation of the golf course. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that the Club does not pay for the maintenance of Lake 7, at least as between the Club and its lessor, which is the subject of the pertinent lease provision. (There was evidence as to a dispute between the Club and the Petitioners, or at least some of them, as to who is responsible for maintenance of land in the vicinity of the western extent of Lake 7 and the eastern extent of the Petitioners' property. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence to the extent that there are "A" parcels between lots 115 through 120 and Lake 7. Otherwise, accepted and incorporated. Accepted and incorporated. Not clear whether all of the activities listed in the second sentence are done in the entire area up to the water's edge but, otherwise, accepted and incorporated. Accepted, but subordinate to facts contrary to those found, and unnecessary. Accepted; subordinate to facts found. Rejected. The intent of the parties is not clear and is the subject of litigation in state circuit court. 17.-18. Accepted that some probably used the words "to the water's edge"; others may have said "to the lake" or "to the approximate high water line." Regardless of what they said, the legal consequences are being litigated in state circuit court. Subordinate to facts contrary to those found, and unnecessary. 19.-20. Accepted and incorporated to the extent not subordinate or unnecessary.. Last sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. The evidence was sufficient to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on the Alberti boundary survey that was attached to the individual deeds to all of the "A" parcels, in relation to the "top of bank" of Lake 7 and other topographical features depicted on Exhibit M-16. The 0.679 acre total for the "A" parcels was merely transcribed from the Alberti boundary survey (probably incorrectly, as the boundary survey seems to indicate the acreage to be 0.674, plus or minus.) Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, it will spread more than before the modifications, up to a maximum spread of approximately ten feet. Rejected as contrary to the greater weight of the evidence. The Club gave reasonable assurances that the spread would be contained within its leasehold interest. However, consideration would have to be given to modifying the permit if the state circuit court determines in the pending litigation that the easterly boundary of the "A" parcels lies to the east of the "top of bank." Accepted and incorporated to the extent not conclusion of law. Accepted. Self-evident and unnecessary. Accepted and incorporated. Accepted, but subordinate, and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. It does not prohibit it; it just does not authorize it. It provides that authorization may be obtained by permit modification. Accepted and incorporated to the extent not subordinate or unnecessary. 32.-36. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) 37. Rejected as contrary to the greater weight of the evidence that discharges will be "likely." (Accepted and incorporated that no discharges are expected as a result of storm events up to and including a 100-year storm event unless preceding conditions predispose the system to discharge during a 100-year storm event.) 38.-39. Accepted but subordinate and unnecessary. (As for 39., very little construction will be required for the proposed project.) Rejected as contrary to the greater weight of the evidence. First, Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a half inch will be added. Second, it is not clear that the Ardaman report established an "artificially low seasonal high water level." (There is a hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman report assumed no flow into or out of Lake 7; it also assumed no pumpage into or out of the lake.) Rejected as contrary to the greater weight of the evidence that it is based "solely" on that assumption. Accepted and incorporated that it is based on that and on other assumptions. Accepted and incorporated. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) Rejected as not supported by evidence. Rejected as contrary to the greater weight of the evidence to the extent that the impact is obvious--the water level in the pond will be approximately equal to the water level in Lake 7. Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, so will the water level in the pond. 47.-48. Accepted and incorporated. 49.-50. Accepted but subordinate and unnecessary. 51.-52. Accepted and incorporated. Respondents' Proposed Findings of Fact. 1.-7. Accepted and incorporated. 8. Rejected as contrary to the greater weight of the evidence in that there was more to the application than just substitution of reuse for well water. 9.-10. Accepted and incorporated. 11. Accepted and incorporated to the extent not subordinate or unnecessary. 12.-22. Accepted and incorporated. Rejected as not proven. (The two District witnesses disagreed.) Even if true, subordinate to facts contrary to those found. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. 28.-29. Accepted; subordinate to facts found, and in part conclusion of law. 30. Accepted. First sentence, incorporated; second sentence, subordinate to facts found, and in part conclusion of law. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted but subordinate to facts contrary to those found. 39.-40. Accepted and incorporated to the extent not subordinate or unnecessary. 41.-43. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. Last sentence, accepted and incorporated to the extent not conclusion of law; rest, accepted but subordinate to facts contrary to those found, and in part conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted, but subordinate, and unnecessary. Accepted and incorporated. First sentence, accepted but subordinate to facts contrary to those found; second sentence, accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. 51.-52. Accepted and incorporated. 53.-55. Accepted, but subordinate to facts found, and unnecessary. 56. Accepted and incorporated. 57.-62. Accepted and incorporated to the extent not subordinate or unnecessary. 63. Accepted and incorporated to the extent not conclusion of law. COPIES FURNISHED: Patricia A. Petruff, Esquire D. Robert Hoyle, Esquire Dye & Scott, P.A. 1111 Third Avenue West Bradenton, Flroida 34206 Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith, Schuser & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Mark F. Lapp, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston,Esq. General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
