01-003798 Glen Springs Preservation Association, Inc., And Elizabeth T. Furlow vs. Luther E. Blake, Jr.; Irene Blake Caudle; And St. Johns River Water Management District Status: Closed Recommended Order on Thursday, February 14, 2002.

Summary: Applicant provided reasonable assurance that stormwater management system for subdivision complied with all design and performance criteria and other regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN SPRINGS PRESERVATION )

ASSOCIATION, INC., and )

ELIZABETH T. FURLOW, )

)

Petitioners, )

)

vs. ) Case No. 01 - 3798

)

LUTHER E. BLAKE, JR.; IRENE )

BLAKE CAUDLE; and ST. JOHNS )

RIVER WATER MANAGEMENT )

DISTRICT, )

)

Res pondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division

of Administrative Hearings by its assigned Administrative Law

Judge, Donald R. Alexander, on January 3 and 4, 2002, i n

Gainesville, Florida.

APPEARANCES

For Petitioners: Samuel A. Mutch, Esquire

Mutch & Brigham, P.A.

2114 Northwest 40th Terrace, Suite A - 1

Gainesville, Florida 32605 - 3592

For Re spondents: Ronald A. Carpenter, Esquire

(Applicants) Carpenter & Parrish, P.A.

5608 Northwest 43rd Street

Gainesville, Florida 32653 - 8334

For Respondent: Charles A. Lobdell, III, Esquire

(District) Jennifer B. Springfield, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

STATEMENT OF THE ISSUE

The issue is whether an Environmental Resource Permit should

be issued to Luther E. Blake, Jr. and Irene Blake Caudle

authorizing the construction of a stormwater management system to

serve a single - family development known as Walnut Creek, Phases I

and II, in Gainesville, Florida.

PRELIMINARY STATEMENT

This matter began on August 15, 2001, when Respondent, St.

Johns River Water Management District, issued its Written Notice

of Intended District Decision on Permit Application 42 - 001 - 71000 - 1

authorizing Responde nts, Luther E. Blake, Jr. and Irene Blake

Caudle, to construct a stormwater management system for a single -

family residential subdivision in Gainesville, Florida. On

September 7, 2001, Petitioners, Glen Springs Preservation

Association, Inc., and Elizabet h T. Furlow, filed a Petition for

Administrative Hearing challenging the issuance of the permit.

The matter was referred to the Division of Administrative Hearings

on September 26, 2001, with a request that an Administrative Law

Judge be assigned to condu ct a hearing.

By Notice of Hearing dated October 12, 2001, a final hearing

was scheduled on January 3 and 4, 2002, in Gainesville, Florida.

Petitioners' Motion to Continue the hearing was denied by Order

dated December 20, 2001. A second Motion to Cont inue filed by

Petitioners at the outset of the hearing was also denied.

At the final hearing, Petitioners presented the testimony of

Dr. Leonard T. Furlow, Jr.; Dr. W. Herbert Platt; Dr. John D.

Dame; Bonnie O'Brien; Dr. Merrill Wilcox; William R. Reck, a

professional engineer accepted as an expert; and Stephen Boyes, a

hydrogeologist accepted as an expert. Also, they offered

Petitioners' Exhibits 1, 1A, 2, 25, and 26, which were received in

evidence. Respondent, St. Johns River Water Management District,

presented the testimony of Dr. Chou Fang, a professional engineer

accepted as an expert, and Michael A. Register, III, director of

the Division of Water Resources accepted as an expert. Also, it

offered District Exhibits 1 - 5, 8, and 10, which were receiv ed in

evidence. Respondents, Luther E. Blake, Jr. and Irene Blake

Caudle, presented the testimony of H. Jerome Kelley, a

professional engineer accepted as an expert, and M. Fred Rwebyogo,

a professional engineer accepted as an expert. Also, they offered

Applicants' Exhibits 1 - 5 and 7 - 9, which were received in evidence.

Finally, the undersigned took official recognition of the St.

Johns River Water Management District Applicant's Handbook:

Regulation of Stormwater Management Systems and Chapter 40C - 42,

Fl orida Administrative Code.

The Transcript of the hearing (four volumes) was filed on

January 23, 2002. Proposed Findings of Fact and Conclusions of

Law were filed by Petitioners and by the St. Johns River Water

Management District on February 4, 2002, an d they have been

considered by the undersigned in the preparation of this

Recommended Order. 1

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. In this environmental permitting dispute, R espondent, St.

Johns River Water Management District (District), proposes to

issue an Environmental Resource Permit to Respondents, Luther E.

Blake, Jr. and Irene Blake Caudle (Applicants), authorizing the

construction of a stormwater management system to serve Phases I

and II of a single - family development known as Walnut Creek

Subdivision in Gainesville, Florida.

2. The system will be located on a 31 - acre, L - shaped parcel

of undeveloped, forested land. The proposed system includes a

135 - lot single fam ily subdivision, internal roadways with curb and

gutter, a storm sewer system, and five dry retention ponds. The

project site is located west of Northwest 13th Street (Highway

441) in the northwestern portion of the City of Gainesville

between Northwest 3 9th Avenue (State Road 222) and Northwest 31st

Boulevard, west of Palm Grove Subdivision, and east of Hidden

Pines Subdivision.

3. Petitioner, Glen Springs Preservation Association, Inc.

(Association), is a corporation made up of an undisclosed number

o f persons, at least one of whom resides adjacent to or near the

proposed project site. Petitioner, Elizabeth T. Furlow (Furlow),

who did not indicate that she is a member, also resides with her

husband near the project site. As set forth in the parties'

Prehearing Stipulation, Petitioners contend that the proposed

system fails to meet certain design and performance criteria, that

the Applicants have failed to submit the appropriate documentation

to satisfy the operation and maintenance entity requirements , and

that the Applicants have failed to provide reasonable assurance

that the system meets the general requirements for issuance of a

permit. More specifically, they contend that the requirements of

Rules 40C - 42.023(1)(a) - (c), 40C - 42.025(1), (3), (4), (5 ), (6),

(7), (8), and (10), 40C - 42.026(1)(a), (c), and (d), and 40C -

42.027, Florida Administrative Code, have not been met. 2 On these

technical issues, the parties have presented conflicting expert

testimony, and the undersigned has accepted the more cred ible and

persuasive testimony, as set forth in the findings below.

4. Respondents have not stipulated to Petitioners' standing.

Through the testimony of Furlow's husband, it was established that

the Furlows live just south of the project site, approxima tely 100

yards north of Northwest 31st Boulevard near a creek known as Glen

Springs Creek (Creek). The Furlows fear that if a permit is

issued, runoff from the project site will cause further erosion of

the Creek's banks and flooding during rainfall event s.

5. Although three persons who live adjacent to or near the

project site appeared as witnesses, only one (Bonnie O'Brien)

indicated that she is a member of the Association. Ms. O'Brien

has lived just west of the Creek since 1969, around one - half mile

from the project site. Over the years, and due to erosion caused

by increasing development in the area, much of which began before

the District began permitting stormwater systems, the Creek's

banks have increased in depth from around a foot or so to as much

as six feet. During large storm events, the Creek's waters rise

up to as much as five feet in depth. Like the Furlows, Ms.

O'Brien fears that runoff from the project will go into the Creek

and adversely affect her property. There was, however, no

e vidence concerning the Association's interests, whether the

Association is a Florida corporation, the number of members in the

Association, and except for Ms. O'Brien, whether any of its

members are substantially affected by the proposed activity. 3

b. Des ign and performance criteria

6. The Applicants propose to use a dry retention system

consisting of five dry retention ponds ranging in depth from three

to four and one - quarter feet which will be located mainly along

the western boundaries of the project s ite. In general terms,

stormwater runoff from the residential lots will sheet flow to

roadways and alleys, will be collected by curbs and gutters, and

then will be conveyed to the five ponds for water quality

treatment.

7. Rule 40C - 42.025(1) requires tha t "[e]rosion and sediment

control best management practices shall be used as necessary

during construction to retain sediment on - site." The more

persuasive evidence shows that the applicants have done so, and

that the best management practices used by the Applicants are

generally utilized throughout the development community.

Therefore, the requirements of this rule have been met.

8. Rule 40C - 42.025(3) provides that unless applicable local

regulations are more restrictive, "[n]ormally dry basins designed

to impound more than two feet of water or permanently wet basins

shall be fenced or otherwise restricted from public access." The

proposed retention basins that have three - to - one (horizontal:

vertical) side slopes will be fenced to prevent public access.

The evidence also shows that there are no applicable, more

restrictive local regulations.

9. Under Rule 40C - 42.025(4), "[a]ll stormwater basin side

slopes shall be stabilized by either vegetation or other materials

to minimize erosion and sedimentation of the basins." As to this

requirement, the evidence establishes that all of the stormwater

basin side slopes will be stabilized by vegetation to minimize

erosion and sedimentation of the basins, as required by the rule.

Further, the proposed retention b asin side slopes are four - to - one

and three - to - one. Slopes of this dimension are typically stable

and will not easily erode.

10. Rule 40C - 42.025(5) requires that the systems be designed

so that they "accommodate maintenance equipment access" and

"facilita te regular operational maintenance." The evidence shows

that the Applicants own the entire project site, and each of the

five retention ponds can be accessed from roads and alleys within

the project site.

11. Rule 40C - 42.025(6) requires that an applicant "obtain

sufficient legal authorization as appropriate prior to permit

issuance for stormwater management systems which propose to

utilize offsite areas to satisfy the requirement in subsection

40C - 42.023(1), F.A.C." Because the Applicants are not proposi ng

to use any offsite areas for the system, and the system is located

entirely on the project site, no "legal authorization" from other

persons is required.

12. Under Rule 40C - 42.025(7), the system "shall provide

gravity or pumped discharge that effective ly operates under . . .

[m]aximum stage in the receiving water resulting from the mean

annual 24 - hour storm." Calculations performed by the Applicants,

and verified by the District's independent calculations, show that

the system is designed to retain all of the runoff from the mean

annual 24 - hour storm event. Therefore, this rule has been

satisfied.

13. Rule 40C - 42.025(8) provides that if a system serves a

new construction area with greater than 50 percent impervious

surface, an applicant is required to demonstrate that "post -

development peak rate of discharge does not exceed the pre -

development peak rate of discharge" for the mean annual 24 - hour

storm event. If the system serves a new construction area with

less than 50 percent impervious surface, howe ver, the requirements

of this rule do not apply.

14. The evidence shows that the proposed retention system

will serve a new construction area (around 12 acres) with less

than 50 percent impervious area. Therefore, the rule does not

apply. Even so, the A pplicants demonstrated that the post -

development peak rate of discharge from the project site will not

exceed the pre - development peak rate of discharge for the 24 - hour

storm event. In fact, the post - development peak rate of discharge

from the project sit e during the 24 - hour mean annual storm event

will be zero.

15. Finally, Rule 40C - 42.025(10) requires in part that the

construction plans and supporting calculations be "signed, sealed,

and dated by an appropriate registered professional." The

evidence shows that the final set of plans submitted in January

2002 by the Applicants was signed and sealed by H. Jerome Kelly, a

professional engineer. 4

c . Specific design and performance criteria

16. Rule 40C - 40.026(1)(a) requires that the retention system

pr ovide retention of stormwater runoff in one of four ways. Here,

the Applicants have designed the system to provide "[o]n - line

retention of an additional one half inch of runoff from the

drainage area over the volume specified in subparagraph 1. above."

S ubparagraph 1. requires "[o]ff - line retention of the first one

half of runoff or 1.25 inches of runoff from the impervious area,

whichever is greater[.]" Because the system will provide on - line

retention of a minimum of one inch of runoff from the project

area, plus 1.25 inches of runoff from the impervious soil in the

project/drainage area, it is found that the capacity of the

proposed retention system is more than adequate to capture the

quantity of stormwater runoff required by this rule.

17. Under Rul e 40C - 42.026(1)(c), the system must be designed

to "[p]rovide the capacity for the appropriate treatment volume of

stormwater specified in paragraphs (a) and (c) above, within 72

hours following the storm event assuming average antecedent

moisture conditio ns." To assure compliance with this rule, and to

demonstrate that the system meets the required recovery of the

water quality treatment volume, the District performed modeling to

predict the vertical infiltration rate and the groundwater

mounding effects of the proposed retention system. For the

reasons stated below, it is found that the system will provide the

required amount of treatment volume capacity within 72 hours of a

storm event assuming average antecedent moisture conditions, as

required by the rule.

18. The District used one of the latest versions of the

MODRET computer modeling program, a methodology routinely used by

the District to support an application for this type of retention

system. That program takes into account vertical percolation into

the soil; once the water reaches the water table, the model then

takes into account the lateral or horizontal movement of the water

out of the pond. The model is used to determine whether the

required water quality treatment volume, which is signifi cantly

less than the storage volume in the ponds, will draw down within

three days. The modeling confirmed that this requirement will be

satisfied. Data from the Applicants' on - site soil survey was used

in the model to establish the depth below ground su rface of the

seasonal high water table level. This resulted in a conservative

assumption of an above - normal average antecedent moisture

condition beneath the retention ponds.

19. The Applicants also collected soil samples from the

project site, includi ng those areas where the retention ponds will

be located, and they performed laboratory tests in accordance with

ASTM D2434 to calculate the vertical hydraulic conductivity and

the horizontal hydraulic conductivity for those soils. The

results of both tes ts fall within accepted ranges as stated in the

published soils texts and governmental soils surveys for the

project area.

20. In addition, the Applicants conducted an independent

test to determine the mean seasonal high water table on the

project site. Based on visual observations of the soil samples,

the Applicants determined that the mean seasonal high water table

is between six and seven feet below ground surface. The visual

observation of the soil samples is compatible with the results of

Petitioner s' soil augers obtained off the project site.

21. As noted earlier, the proposed retention ponds will have

a depth of three to four and one - quarter feet, which places the

bottom of the ponds above the mean high water table as determined

by the Applicant s' calculations and as stated in the soils survey

for Alachua County. Therefore, the dry retention ponds should not

be considered impervious surfaces.

22. Finally, Rule 40C - 42.026(1)(d) requires that the

retention system "[b]e stabilized with pervious ma terial or

permanent vegetation cover." The evidence shows that the proposed

retention system will be stabilized with permanent vegetative

cover.

d. Other requirements and concerns

23. Runoff from other developed properties in the vicinity

of the pr oposed project site discharges into the Creek,

contributing to erosion in the Creek. Not all of these existing

developments have stormwater management systems on - site, since

some of the older properties were built before the District

assumed regulation ov er this activity.

24. The proposed system can be effectively operated and

maintained without causing or exacerbating the erosion problems

that currently exist within the Creek system. This is because

once the system is built, the amount of runoff leaving the site

will be less than what is now present in the pre - development

state. Thus, the project, as now designed, will not adversely

affect drainage and flood protection on adjacent or nearby

properties.

25. Through the submission of a copy of the Articl es of

Incorporation and Declaration of Covenants for the Walnut Creek

Homeowner's Association, the Applicants demonstrated that the

District's requirements regarding the operation and maintenance of

the proposed system after completion of construction will be met,

as required by Rule 40C - 42.027(4).

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2001).

27. As th e applicants in this cause, Luther E. Blake, Jr.,

and Irene Blake Candle bear the burden of showing by a

preponderance of the evidence that they are entitled to the

requested permit. See , e.g. , Cordes v. State, Dep't of Envir.

Reg. , 582 So. 2d 652, 654 (F la. 1st DCA 1991).

28. In order for an association to demonstrate standing, it

must show that a "substantial number of its members, although not

necessarily a majority, are 'substantially affected' by the

challenged [action]"; that "the subject matter of the [proposed

agency action is] within that association's general scope of

interest and activity"; and that the "relief requested must be of

the type appropriate for a[n] . . . association to receive on

behalf of its members." Fla. Home Builders Ass'n v. Dep't of

Labor and Employ. Sec. , 412 So. 2d 351, 353 - 54 (Fla. 1982).

Except for the testimony of one member, and the impact of the

project on her property, there was no evidence regarding the

number of members of the Association, whether a substantial num ber

of the members are substantially affected by the District's

intended action, the Association's general scope of interest and

activity, and whether the requested relief is of a type

appropriate for an association to receive on behalf of its

members. Th is being so, the Association has failed to demonstrate

standing to challenge the proposed agency action.

29. As to Ms. Furlow, through the testimony of her husband,

she has demonstrated that she will be substantially affected by

the proposed agency actio n, and therefore she has standing to

bring this action.

30. Rule 40C - 42.023, Florida Administrative Code, sets forth

the general requirements for issuance of a permit for a stormwater

management system. The relevant requirements are as follows:

(1) To r eceive a general or individual permit under

this chapter the applicant must provide reasonable

assurance based on plans, test results and other

information, that the stormwater management system:

(a) Will not result in discharges from the system to

surfa ce and ground water of the state that cause or

contribute to violations of state water quality

standards as set forth in chapters 62 - 302, 62 - 4, 62 - 550,

F.A.C, including any antidegradation provisions of

sections 62 - 4.242(1)(a) and (b), 62 - 4.242(2) and (3),

and 62 - 302.300, F.A.C., and any special standards for

Outstanding Florida Waters and Outstanding National

Resource Waters set forth in sections 62 - 4.242(2) and

(3), F.A.C.;

(b) Will not adversely affect drainage and flood

protection on adjacent or near by properties not owned or

controlled by the applicant; [and]

(c) Will be capable of being effectively operated and

maintained pursuant to the requirements of this

chapter[.]

Petitioners contend that the Applicants have failed to give

reasonable assuran ce that these requirements have been met.

31. In addition, Chapter 40C - 42, Florida Administrative

Code, governs stormwater management systems of the type proposed

by the Applicants. Of relevance here are Rules 40C - 42.025 and

40C - 42.026, Florida Administr ative Code, which set forth design

and performance criteria and specific design and performance

criteria, respectively, which apply to stormwater management

systems. As reflected in the parties' Prehearing Stipulation,

Petitioners contend that eight desig n and performance criteria

(subsections (1), (3) - (8), and (10)) and three specific design and

performance criteria (paragraphs (1)(a), (c), and (d)) have not

been satisfied.

32. Finally, Rule 40C - 42.027(4), Florida Administrative

Code, requires that the o wner or developer must submit

documentation to demonstrate that the responsible entity (in this

case, a homeowners' association) meets the operation and

maintenance entity requirements.

33. By a preponderance of the evidence, the Applicants have

establis hed that the system complies with all design and

performance criteria, including those concerning erosion and

sediment control, fencing, side slope stabilization, maintenance

access, tailwater condition, and the signing and sealing of the

construction plan s. The evidence also shows that Subsections (6)

and (8) do not apply. This is because the Applicants do not

propose to use any offsite areas to satisfy the requirements of

Rule 40C - 42.023(1), and the proposed system will not serve a new

construction are a with greater than a 50 percent impervious

surface.

34. By a preponderance of the evidence, the Applicants have

also shown that the system complies with all specific design and

performance criteria, including the ability to retain the required

water qual ity treatment volume and to recover its capacity within

72 hours of a rainfall event. Further, the system will be

stabilized with permanent vegetative cover.

35. The preponderance of the evidence shows that the

requirements of Rule 40C - 42.023(1)(a) - (c) h ave been met, and that

reasonable assurance has been given by the Applicants for issuance

of a permit. Likewise, the more persuasive evidence shows that

the requirements of Rule 40C - 42.027 have also been met. This

being so, the permit should be issued.

R ECOMMENDATION

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 application number 42 - 001 -

71000 - 1 of Luther E. Blake, Jr. and Irene Blake Caudle for an

Environmental Resource Permit.

DONE AND ENTERED this 14th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 14th day of February, 2002.

ENDNOTES

1/ Respondents, Luther E. Blake and Claudia Blake Caudle, have

adopted by reference the Proposed Recommended Order submitted by

the District.

2/ In their Proposed Recommended Order, Petitioners now concede

that the requirements of Rules 40C - 42.025(1), (4), and (5), 40C -

42.026(1)(d), and 40C - 42.027 have been met.

3/ Although the initial Petition contains allegations concerning

these matters, ther e was no supporting proof.

4/ The rule simply contemplates that the plans be signed and

sealed by a licensed professional. The fact that the plans may

contain an erroneous calculation, as Petitioners suggest, does not

render the sealing invalid.

COPIE S FURNISHED:

Kirby B. Green, III, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

Samuel A. Mutch, Esquire

Mutch & Brigham, P.A.

2114 Northwest 40th Terrace, Suite A - 1

Tallahassee, Florida 32605 - 3592

Charles A. Lobdell, III, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

Ronald A. Carpenter, Esquire

Carpenter & Parrish, P.A.

5608 Northwest 43rd Street

Gainesville, Florida 32653 - 3332

N OTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in t his matter.