04-002409 James E. Peake And Alicia M. Peake vs. City Of Deltona And St. Johns River Water Management District Status: Closed Recommended Order on Friday, May 27, 2005.

Summary: Respondent, applicant for an environmental resource permit (ERP) provided reasonable assurance that the applicable requirements of Florida Administrative Code Rules 40C-4.301 and 302 have been met so as to entitle it to the ERP.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA ASH, et al. , ) Case Nos. 04-2399

) 04-2400

Petitioners, ) 04-2401

) 04-2403

vs. ) 04-2404

) 04-2405

CITY OF DELTONA AND ST. JOHNS ) 04-2406

RIVER WATER MANAGEMENT ) 04-2408

DISTRICT, ) 04-2409

) 04-2411

Respondents. ) 04-2412

) 04-3048

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on March 30 through March 31, 2005, in

Deltona, Florida.

APPEARANCES

For Petitioners Barbara Ash, Francell Frei, Bernard J. and

Virginia T. Patterson, and Ted and Carol Sullivan:

Barbara Ash, Qualified Representative

943 South Dean Circle

Deltona, Florida 32738

For Petitioners Howard Ehmer and Nina Ehmer:

Howard and Nina Ehmer, pro se

1081 Anza Court

Deltona, Florida 32738

For Petitioners Steven L. Spratt, James E. Peake, and

Alicia M. Peake:

Steven L. Spratt, Qualified Representative

2492 Weatherford Drive

Deltona, Florida 32738

For Petitioners Steven E. Larimer, Kathleen Larimer, and

Helen Rose Farrow:

J. Christy Wilson, Esquire,

(No Appearance)

Wilson, Garber & Small, P.A.

437 North Magnolia Avenue

Orlando, Florida 32801

For Petitioner Diana E. Bauer:

Diana E. Bauer, pro se

1324 Tartan Avenue

Deltona, Florida 32738

For Petitioner Gloria Benoit:

Gloria Benoit, (Appeared First Day Only)

1300 Tartan Avenue

Deltona, Florida 32738

For Petitioner Gary Jensen:

Gary Jensen, (No Appearance)

1298 Tartan Avenue

Deltona, Florida 32738

For Petitioner Phillip Lott:

Phillip Lott, pro se

948 North Watt Circle

Deltona, Florida 32738-7919

For Respondent City of Deltona:

George Trovato, Esquire

City of Deltona

2345 Providence Boulevard

Deltona, Florida 32725

For Respondent St. Johns River Water Management District:

Kealey A. West, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

STATEMENT OF THE ISSUE

The issue is whether the applicant for an Environmental

Resource Permit ("ERP"), the City of Deltona ("City" or

"Applicant"), has provided reasonable assurance that the system

proposed complies with the water quantity, environmental, and

water quality criteria of the St. Johns River Water Management

District's ("District") ERP regulations set forth in Florida

Administrative Code Chapter 40C-4, and the Applicant's Handbook:

Management and Storage of Surface Waters (2005).

PRELIMINARY STATEMENT

Petitioners received notice of the District's intent to

issue the ERP to the City and timely filed Petitions for a

Formal Administrative Hearing challenging the District's

intended issuance of the ERP. The matter was referred to the

Division to conduct a formal administrative hearing pursuant to

Sections 120.569 and 120.57(1), Florida Statutes. At the

hearing, the City presented the testimony of William Musser, an

expert in stormwater management, hydrology, and ecology; and

Roderick Cashe, an expert in stormwater management. Exhibit

Nos. 1, 2, 4, 5, 7-9, 13, and 14A-F were offered by the City and

were admitted into evidence.

Petitioner Ash testified herself and on behalf of

Petitioners Francell Frei, Bernard J. and Virginia T. Patterson,

and Ted and Carol Sullivan. Exhibit Nos. 1-6 and 12-24 were

offered by Ms. Ash were admitted into evidence. Petitioner

Diana E. Bauer testified herself, and offered no exhibits into

evidence. Petitioner Howard Ehmer testified himself, and

offered no exhibits into evidence. Petitioner Phillip Lott

testified himself, and had Exhibit Nos. 1-19 admitted into

evidence. Petitioner Stephen Spratt testified himself and on

behalf of James E. and Alicia M. Peake, and offered no exhibits

into evidence.

The District presented the testimony of Lee Kissick, an

expert in wetland and wildlife ecology, mitigation planning,

wetland delineation, and environmental resource planning and

regulation; and Marjorie Cook, an expert in water resource

engineering, surface water and stormwater management systems,

and environmental resource permitting and regulation. Exhibit

Nos. 5, 17, 24, 32, 33, and 38 were offered by the District and

were admitted into evidence.

The Amended Pre-Hearing Stipulation, filed with the

Division on March 29, 2005, was admitted into evidence as Joint

Exhibit No. 1.

A three-volume Transcript was filed on April 19, 2005. The

parties had been permitted to file their proposed recommended

orders within 10 days of the date on which the transcript was

filed. Petitioner Phillip Lott filed his Proposed Recommended

Order on April 12, 2005, Petitioner Howard Ehmer filed his

Proposed Recommended Order on April 13, 2005, and Petitioners'

Barbara Ash, Francell Frie, and Gloria Benoit filed their

Proposed Recommended Orders on April 15, 2005. Respondent

St. Johns River Water Management District filed its Proposed

Recommended Order on April 29, 2005, and Respondent City of

Deltona filed its approval and adoption of St. Johns River Water

Management District's Proposed Recommended Order on May 2, 2005.

References are to Florida Statutes (2004), unless otherwise

noted.

FINDINGS OF FACT

1. The District is a special taxing district created by

Chapter 373, Florida Statutes, charged with the duty to prevent

harm to the water resources of the District, and to administer

and enforce Chapter 373, Florida Statutes, and the rules

promulgated thereunder.

2. The City of Deltona is a municipal government

established under the provisions of Chapter 165, Florida

Statutes.

3. The Lake Theresa Basin is comprised primarily of a

system of interconnected lakes extending from Lake Macy in the

City of Lake Helen to the Butler Chain of Lakes (Lake Butler and

Lake Doyle). The Lake Theresa Basin is land-locked and does not

have a natural outfall to Lake Monroe and the St. Johns River.

4. In 2003, after an extended period of above-normal

rainfall in the Deltona area, the lakes within the land-locked

Lake Theresa Basin staged to extremely high elevations that

resulted in standing water in residential yards, and rendered

some septic systems inoperable. Lake levels within the Lake

Theresa Basin continued to rise and were in danger of rising

above the finished floor elevations of some residences within

the basin.

5. On March 25, 2003, the District issued an Emergency

Order (F.O.R. No. 2003-38) authorizing the construction and

short-term operation of the Lake Doyle and Lake Bethel Emergency

Overflow Interconnection. Since wetland and surface water

impacts would occur, the Emergency Order required the City of

Deltona to obtain an ERP for the system.

6. The project area is 4.1 acres, and the system consists

of a variable water structure on the west shore of Lake Doyle

connected to a series of pipes, swales, water control

structures, and wetland systems which outfall to a finger canal

of Lake Bethel, with ultimate discharge to Lake Monroe and the

St. Johns River.

7. The first segment of the system extends downstream from

the weir structure on the west shore of Lake Doyle via a pipe

entrenched in the upland berm of the Sheryl Drive right-of-way.

The pipe passes under Doyle Road and through xeric pine-oak

uplands to the northeast shore of a large (approximately 15

acres) deepwater marsh. Water flows south through the deepwater

marsh where it outfalls through four pipes at Ledford Drive.

8. Two of the four pipes are overflow structures,

controlled by canal gates. The pipes at Ledford Drive discharge

into a ditch and into a large (greater than 20 acres) shallow

bay swamp.

9. The south end of the bay swamp is defined (and somewhat

impounded) by a 19th Century railroad grade. Water flows

through the bay swamp where it outfalls through five pipes at

the railroad grade.

10. Three of the five pipes are overflow structures,

controlled by channel boards. The pipes at the railroad grade

discharge to a 1500-foot long finger canal that was dug some

time during the period 1940-1972 from the north central shore of

Lake Bethel.

11. The overflow interconnection system has three

locations whereby the system can be shut down: 1) Lake Doyle--a

control weir, controlled by three sluice gates; 2) Ledford

Drive--two thirty-inch reinforced concrete pipes, controlled by

canal gates; and 3) railroad grade--three thirty-inch reinforced

concrete pipes, controlled by channel boards (collectively

referred to as "Overflow Structures").

12. The Overflow Structures are designed to carry the

discharge of water from Lake Doyle to Lake Bethel.

13. With the Overflow Structures closed the system returns

to pre-construction characteristics, meaning there will be no

increase or decrease in the quantity or quality of water

throughout the path of the system as a result of the project.

14. An unequivocal condition of the permit is that the

system would operate with all of the Overflow Structures closed.

15. As an added assurance, the City proposes to place a

brick and mortar plug in the Lake Doyle weir structure outfall

pipe to prevent any discharge from the weir.

16. The City has submitted to the District preliminary

plans for a future phase in which the system would be modified

for the purpose of alleviating high water levels within the Lake

Theresa Basin when the water level in Lake Doyle rises above an

elevation of 24.5 feet.

17. The District shall require a separate permit

application to be submitted for such future plans.

18. Petitioner, Barbara Ash, has lived on Lake Theresa for

19 years. Ms. Ash lives upstream from the area of the weir that

will be plugged in accordance with the ERP. She does not trust

either the City of Deltona to comply with or the District to

enforce the conditions of the ERP applied for by the City.

19. Petitioner, Barbara Ash, also served as the qualified

representative for Petitioners, Francell Frei, Bernard J. and

Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash

represented that Ms. Frei has lived on Lake Theresa for 12

years, and both the Pattersons and the Sullivans live on Lake

Louise, which is within the area of concern in this proceeding.

20. Petitioner, Diana Bauer, has lived on Lake Theresa

since February 2004. She fears that the lake will become too

dry if the system is allowed to flow. She also believes the

wildlife will be adversely affected if the water levels are too

low since many species need a swampy or wet environment to

thrive. She fears her property value will decrease as a result

of the approval of the ERP. She also does not trust either the

City to comply with or the District to enforce the conditions of

the ERP.

21. Petitioner, Howard Ehmer, lives two to three hundred

yards down Lake Theresa from Ms. Bauer. He is concerned about

the lake bed being too dry and attracting people on all terrain

vehicles who enjoy driving around the lake bottom. He is

concerned about his property value decreasing if the lake bed is

dry. Further, when the lake level is too low, people cannot

enjoy water skiing, boating, and fishing on Lake Theresa.

22. Petitioner, Phillip Lott, a Florida native, has also

owned and lived on property abutting Lake Theresa since 1995.

Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal

zone studies, an M.B.A. in international business, and a B.S. in

environmental resource management and planning. Mr. Lott has

been well acquainted with the water levels on Lake Theresa for

many years. Based upon his personal observations of the lake

systems in the Deltona area over the years, Mr. Lott has seen

levels fluctuate greatly based upon periods of heavy and light

rainfall.

23. Mr. Lott is concerned that the District will permit

the City to open the weir to let water flow through the system

and cause flooding in some areas and low water levels in other

areas. He fears that the District will allow the water to flow

and upset the environmental balance, but he admits that this ERP

application is for a closed system that will not allow the water

to flow as he fears. Mr. Lott similarly does not trust the City

to comply with and the District to enforce the conditions of the

ERP.

24. Petitioners, James E. and Alicia M. Peake, who were

represented by Steven L. Spratt at hearing as their qualified

representative, live on Lake Louise, which is interconnected

with the Lake Theresa basin. The Peakes are concerned that if

the level of Lake Louise drops below 21 feet, nine inches, they

will not be able to use the boat launch ramps on the lake.

25. Petitioner, Steven L. Spratt, also lives on Lake

Louise, and is concerned about the water levels becoming so low

that he cannot use the boat launch on the lake. He has lived on

the lake since 2000, and remembers when the water level was

extremely low. He fears that approval of the ERP in this case

will result in low levels of water once again.

26. Petitioner, Gloria Benoit, has live on Lake Theresa

for two years. She also enjoys watching recreational activities

on the lake, and feels that approval of the ERP will devalue her

lakefront property. Ms. Benoit appeared at the first day of the

hearing, but offered no testimony on her behalf.

27. J. Christy Wilson, Esquire, appeared prior to the

final hearing as counsel of record for Petitioners, Steven E.

Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither

Ms. Wilson nor any of the three Petitioners she represented

appeared at any time during the hearing, filed any pleadings

seeking to excuse themselves from appearing at the final

hearing, or offered any evidence, testimony, pre- or post-

hearing submittals.

28. Petitioner, Gary Jensen, did not appear at hearing,

did not file any pleadings or papers seeking to be excused from

appearing at the final hearing, and did not offer any evidence,

testimony, pre- or post-hearing submittals.

29. Both the City and the District recognize that areas

downstream from the project site, such as Stone Island and

Sanford, have experienced flooding in the past in time of high

amounts of rainfall.

30. The system proposed by the City for this ERP will

operate with the overflow structures closed and a brick and

mortar plug in the outfall pipe to prevent water flow from Lake

Doyle to Lake Bethel. So long as the overflow structures are

closed, the system will mimic pre-construction flow patterns,

with no increase in volume flowing downstream.

31. The District has considered the environment in its

proposed approval of the ERP. The area abutting the project is

little urbanized and provides good aquatic and emergent marsh

habitat. With the exception of the western shore area of the

deepwater marsh ("west marsh area"), the bay swamp and remaining

deepwater marsh area have good ecological value.

32. In the 1940's, the west marsh area was incorporated

into the drainage system of a poultry farm that occupied the

site. This area apparently suffered increased nutrient influxes

and sedimentation that contributed to a proliferation of

floating mats of aquatic plants and organic debris.

33. These tussocks reduced the deepwater marsh's open

water and diminished the historical marsh habitat. Water under

the tussocks is typically anoxic owing to total shading by

tussocks and reduced water circulation. Thick, soft, anaerobic

muck has accumulated under the matted vegetation. Exotic shrubs

(primrose willow Ludwigia peruvania ) and other plants (cattails

Typha spp .) dominate the tussocks.

34. The construction of the project, from the 2003

Emergency Order, resulted in adverse impacts to 1.3 acres of

wetlands having moderately high- to high ecological value and

0.2 acres of other surface waters.

35. The 0.2 acre impact to other surface waters was to the

lake bottom and the shoreline of Lake Doyle where the weir

structure was installed.

36. The 0.3 acres of wetland impacts occurred at the upper

end of the deepwater marsh where the pipe was installed.

37. The largest wetland impact (1.0 acre) was to the bay

swamp. The bay swamp is a shallow body dominated by low

hummocks and pools connected inefficiently by shallow braided

channels and one acre is filled with a 1-2 foot layer of

sediment following swamp channelization. Disturbance plants

(e.g., primrose willow, Ludwigia peruvania , and elderberry

Sambucus Canadensis ) now colonize the sediment plume.

38. Pursuant to the District's elimination and reduction

criteria, the applicant must implement practicable design

modifications, which would reduce or eliminate adverse impacts

to wetlands and other surface waters. A proposed modification,

which is not technically capable of being done, is not

economically viable, or which adversely affects public safety

through endangerment of lives or property is not considered

"practicable."

39. The City reduced and/or eliminated the impacts to the

lake bottom and shoreline of Lake Doyle and deepwater marsh, to

the extent practicable. The impacts were the minimum necessary

to install the weir structure and pipe for the system; the weir

structure and pipe were carefully installed on the edges of the

wetland and surface water systems, resulting in a minimum amount

of grading and disturbance.

40. To compensate for the loss of 1.3 acres of wetlands

and 0.2 acres of other surface waters, the City proposes to

preserve a total of 27.5 acres of wetlands, bay swamp, marsh,

and contiguous uplands. Included in this 27.5 acres are 6.4

acres of the west marsh, which are to be restored. The parties

stipulated that the mitigation plan would adequately compensate

for losses of ecological function (e.g. wildlife habitat and

biodiversity, etc.) resulting from the project.

41. Water quality is a concern for the District. Lake

Monroe is included on the Florida Department of Environmental

Protection's verified list of impaired water bodies for

nitrogen, phosphorous, and dissolved oxygen. Water quality data

for Lake Monroe indicate the lake has experienced high levels of

nitrogen and phosphorous and low levels of dissolved oxygen.

42. Prior to construction of the project, there was no

natural outfall from the Lake Theresa Basin to Lake Monroe and

therefore no contribution from this basin to nitrogen and

phosphorous loadings to Lake Monroe.

43. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and

the Savannah are surface waters within the Lake Theresa Basin

for which minimum levels have been adopted pursuant to Florida

Administrative Code Chapter 40C-8.

44. The system will operate with the overflow structures

closed and a brick and mortar plug in the outfall pipe to

prevent water flow from Lake Doyle to Lake Bethel, resulting in

no outfall from the Theresa Basin to Lake Monroe.

45. Minimum flows established for surface waters within

the Lake Theresa Basin will not be adversely impacted.

46. Under the first part of the secondary impact test, the

City must provide reasonable assurance that the secondary

impacts from construction, alteration, and intended or

reasonable expected use of the project will not adversely affect

the functions of adjacent wetlands or surface waters.

47. The system is designed as a low intensity project. As

proposed, little activity and maintenance are expected in the

project site area. The reasonably expected use of the system

will not cause adverse impacts to the functions of the wetlands

and other surface waters.

48. None of the wetland areas adjacent to uplands are used

by listed species for nesting or denning.

49. In its pre-construction state, the project area did

not cause or contribute to state water quality violations.

50. Under the second part of the secondary impact test,

the City must provide reasonable assurance that the

construction, alteration, and intended or reasonably expected

uses of the system will not adversely affect the ecological

value of the uplands to aquatic or wetland dependent species for

enabling existing nesting or denning by these species.

51. There are no listed threatened or endangered species

within the project site area.

52. Under the third part of the secondary impact test, and

as part of the public interest test, the District must consider

any other relevant activities that are closely linked and

causally related to any proposed dredging or filling which will

cause impacts to significant historical and archaeological

resources. When making this determination, the District is

required, by rule, to consult with the Division of Historical

Resources. The Division of Historical Resources indicated that

no historical or archaeological resources are likely present on

the site.

53. No impacts to significant historical and

archaeological resources are expected.

54. Under the fourth part of the secondary impact test,

the City must demonstrate that certain additional activities and

future phases of a project will not result in adverse impacts to

the functions of wetlands or water quality violations.

55. The City has submitted to the District preliminary

plans for a future phase in which the system would be modified

for the purpose of alleviating high water levels within the Lake

Theresa Basin when the level in Lake Doyle rises above an

elevation of 24.5 feet.

56. Based upon the plans and calculations submitted, the

proposed future phase, without additional measures, could result

in minor increases in the loadings of nitrogen and phosphorous

to Lake Monroe.

57. Lake Monroe is included on the Florida Department of

Environmental Protection's verified list of impaired water

bodies due to water quality data indicating the lake has

experienced high levels of nitrogen and phosphorous, and low

levels of dissolved oxygen.

58. Under this potential future phase, there would be an

outfall from the Lake Theresa Basin to Lake Monroe. To address

the impact on water quality of this potential future phase, the

City has submitted a loading reduction plan for nitrogen,

phosphorous, and dissolved oxygen. The plan includes

compensating treatment to fully offset the potential increased

nutrient loadings to Lake Monroe. Specifically, the loading

reduction plan includes:

Construction and operation of compensating

treatment systems to fully offset

anticipated increased nutrient loadings to

Lake Monroe. Weekly water quality

monitoring of the discharge from Lake Doyle

for total phosphorous and total nitrogen. A

requirement that the overflow structure be

closed if the total phosphorous level

reaches 0.18 mg/l or higher or the total

nitrogen level reaches 1.2 mg/l or higher in

any given week and will remain closed until

levels fall below those limits.

59. The implementation of these water quality mitigation

measures will result in a net improvement of the water quality

in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen.

60. The future phase was conceptually evaluated by the

District for impacts to wetland functions. The future phase as

proposed could result in adverse impacts to wetland functions.

Operation of the system with the overflow structures open could

impact the bay swamp and deepwater marsh. The City has

demonstrated that any adverse impacts could be offset through

mitigation.

61. Based upon the information provided by the City and

general engineering principles, the system is capable of

functioning as proposed.

62. The City of Deltona will be responsible for the

operation, maintenance, and repair of the surface waster

management system. A local government is an acceptable

operation and maintenance entity under District rules.

63. The public interest test has seven criteria. The

public interest test requires the District to evaluate only

those parts of the project actually located in, on, or over

surface waters or wetlands, to determine whether a factor is

positive, neutral, or negative, and then to balance these

factors against each other. The seven factors are as follows:

1) the public health, safety, or welfare of others;

2) conservation of fish and wildlife and their habitats;

3) fishing, recreational value, and marine productivity;

4) temporary or permanent nature; 5) navigation, water flow,

erosion, and shoaling; 6) the current condition and relative

value of functions; and 7) historical and archaeological

resources.

64. There are no identified environmental hazards or

improvements to public health and safety. The District does not

consider impacts to property values.

65. To offset any adverse impacts to fish and wildlife and

their habitats, the City has proposed mitigation.

66. The areas of the project in, on, or over wetlands do

not provide recreational opportunities.

67. Construction and operation of the project located in,

on, or over wetlands will be permanent in nature.

68. Construction and operation of the project located in,

on, or over wetlands will not cause shoaling, and does not

provide navigational opportunities.

69. The mitigation will offset the relative value of

functions performed by areas affected by the proposed project.

70. No historical or archaeological resources are likely

on the site of the project.

71. The mitigation of the project is located within the

same drainage basin as the project and offsets the adverse

impacts. The project is not expected to cause unacceptable

cumulative impacts.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

73. Petitioners, Gary Jensen, Steven E. Larimer,

Kathleen Larimer, and Helen Rose Farrow, neither appeared at

hearing, personally or through counsel or qualified

representative. Moreover, since none of these Petitioners filed

any pleadings seeking to excuse themselves from appearing at

hearing or offered any pre- or post-hearing submittals, they

have apparently abandoned their claims. Accordingly,

Petitioners Jensen, the Larimers, and Farrow are dismissed from

these proceedings.

74. The City's application for an environmental resource

permit is governed by Florida Administrative Code Chapter 40C-4,

Regulation of Surface Water Management Systems, which

implements, in part, Part IV of Chapter 373, Florida Statutes.

Pursuant to this statute and rules, the District has regulatory

jurisdiction over the permit applicant and project in this

proceeding.

75. The applicant must satisfy the conditions for issuance

set forth in Florida Administrative Code Rules 40C-4.301 and

40C-4.302. The applicant must provide reasonable assurances

that the conditions for issuance have been satisfied.

76. An administrative hearing conducted pursuant to

Sections 120.569 and 120.57(1), Florida Statutes, is a de novo

proceeding designed to formulate final agency action. See

County Comm'rs v. State , 587 So. 2d 1378,1387-88 (Fla. 1st DCA

1991); Fla. Dept. of Transportation v. J.W.C. , 396 So. 2d 778

(Fla. 1st DCA 1981).

77. The initial burden is on the applicant to prove

entitlement to the permit by a preponderance of the evidence.

J.W.C. , 396 So. 2d at 788. The applicant must provide

reasonable assurances through presentation of credible evidence

of entitlement to the permit that the proposed project will not

violate applicable District rules or Florida Statutes. Id. At

789.

78. The applicant's burden is one of "reasonable

assurances, not absolute guarantees." Manasota-88, Inc. v.

Agrico Chemical Co. , 12 F.A.L.R. 1319, 1325 (DER 1990); aff'd

576 So. 2d 781 (Fla. 1st DCA 1991). The "reasonable assurance"

standard has been judicially defined to require an applicant to

establish "a substantial; likelihood that the project will be

successfully implemented." Metro Dade County v. Coscan Florida,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable

assurances must deal with reasonable foreseeable contingencies.

The standard does not require an absolute guarantee that a

violation of a rule is a scientific impossibility, only that its

non-occurrence is reasonable assured by accounting for

reasonably foreseeable contingencies. Ginnie Springs, Inc. v.

Watson , 21 F.A.L.R. 4072, 4080 (DEP 1999); Manasota-88 , 12

F.A.L.R. at 1325. In assessing the risk to resources or water

quality, the District is not required to assume a "worst case

scenario" unless such a scenario is "reasonably foreseeable."

Florida Audubon Society v. South Florida Water Management

District , 14 F.A.L.R. 5518, 5524 (SFWMD 1992); Rudloe v.

Dickerson Bayshore, Inc. , 10 F.A.L.R. 3426-2440-41 (DER 1988).

79. Once an applicant has presented evidence and made a

preliminary showing of reasonable assurance, a challenger must

present "contrary evidence of equivalent quality" to that

presented by the permit applicant. J.W.C. , 396 So. 2d at 789.

"If the petitioner fails to present evidence, or fails to carry

the burden of proof as to the controverted facts asserted --

assuming that the applicant's preliminary showing before the

hearing officer warrants a finding of 'reasonable assurances'--

then the permit must be approved." Id. Simply raising concerns

or even informed speculation about what "might occur" is not

enough to meet the Petitioners' burden. See Chipola Basin

Protective Group, Inc. v. Florida Dep't of Environmental

Regulation , 11 F.A.L.R. 467, 480-81 (DER 1988). Thus, the City

is not required to disprove all the "worst case scenarios" or

"theoretical impacts" raised by Petitioners in this proceeding.

Lake Brooklyn Civic Ass'n v. Florida Rock Industries , 15

F.A.L.R. 4051, 4056 (Fla. LWAC 1993); Hoffert v. St. Joe Paper

Co. , 12 F.A.L.R. 4972, 4987 (DER 1990).

80. Furthermore, since the proceeding is de novo , the

proper test is not whether the District properly evaluated the

original application, but whether the application as presented

at hearing provides reasonable assurance of compliance with

District permitting standards. See McDonald v. Dept. of Banking

& Finance , 346 So. 2d 569,584 (Fla. 1st DCA 1997).

81. To meet their respective burdens of proof, Petitioners

must present a preponderance of competent and substantial

evidence. See Section 120.57(1)(j) and (l), Fla. Stat.; Gould

v. Division of Land Sales , 477 So. 2d 612 (Fla. 1st DCA 1985).

82. The ultimate question of whether reasonable assurances

have been provided is a conclusion of law rather than a finding

of fact. Coscan Florida, Inc. v. Dep't of Environmental

Regulation , 12 F.A.L.R. 1359 (DER 1990); see generally , 1800

Atlantic Developers v. Fla. Dep't of Environmental Regulation ,

552 So. 2d 946 (Fla. 1st DCA 1989), rev. denied , 562 So. 2d 345

(Fla. 1990).

83. In this proceeding, Petitioners failed to produce

competent substantial evidence to refute the reasonable

assurances proposed by the City.

84. The City has provided reasonable assurance the project

meets the criteria set forth in Florida Administrative Code

Rule 40C-4.301(1), since the "construction, alteration,

operation, maintenance, removal, or abandonment of" the proposed

system:

(a) Will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) Will not cause adverse flooding to on-

site or off-site property;

(c) Will not cause adverse impacts to

existing surface water storage and

conveyance capabilities;

(d) Will not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other surface

waters;

(e) Will not adversely affect the quality

of receiving waters such that the water

quality standards set forth in Chapters 62-

3, 62-4, 62-302, 62-520, 62-522, and 62-550,

F.A.C., including any antidegradation

provisions of paragraphs 62-4.242(1)(a) and

(b), subsections 62-4,242(2) and (3), and

Rule 62-302.300, F.A.C., and any special

standards for Outstanding Florida Waters and

Outstanding National Resource Waters set

forth in subsections 62-4.242(2) and (3),

F.A.C., will be violated;

(f) Will not cause adverse secondary

impacts to the water resources;

(g) Will not adversely impact the

maintenance of surface or groundwater levels

or surface water flows established in

Chapter 40C-8, F.A.C.;

(h) Will not cause adverse impacts to a

work of the District established pursuant to

Section 373.086, F.S.;

(i) Will be capable, based on generally

accepted engineering and scientific

principles, of being performed and of

functioning as proposed;

(j) Will be conducted by an entity with the

financial, legal and administrative

capability of ensuring that the activity

will be undertaken in accordance with the

terms and conditions of the permit, if

issued;

(k) Will comply with any applicable special

basin or geographic area criteria

established in Chapter 40C-41, F.A.C.

85. The City demonstrated through competent substantial

evidence that the proposed system will meet each of the

conditions contained in Florida Administrative Code

Rule 40C-4.301(1), and is therefore entitled to the issuance of

the ERP by the District, with the exception of

Subsection 40C-4.4.301(1)(k), which the parties stipulated does

not apply to this project.

86. Moreover, the City demonstrated through competent

substantial evidence that the proposed project meets each of the

applicable criteria contained in Florida Administrative Code

Rule 40C-4.302(1)(a), which requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system located in, on, or over wetlands or

other surface waters will not be contrary to the public

interest, or if such an activity significantly degrades or is

within an Outstanding Florida Water, that the activity will be

clearly in the public interest.

87. Since no part of the proposed system will

significantly degrade or be located within an Outstanding

Florida Water, the City was not required to provide reasonable

assurances on this point.

88. Since the evidence clearly demonstrated that the

mitigation for the project will offset the project's adverse

impacts to wetlands, no adverse effects to the conservation of

fish and wildlife or due to the project's permanent nature will

occur. The evidence further showed that the project will

produce no harmful erosion. Additionally, 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, or

welfare or property of others. The evidence showed that this

project is permanent in nature and the project's design,

including mitigation, is such that the current condition and

relative value of functions performed by wetlands will be

maintained. Therefore, the City has provided reasonable

assurance that the project is not contrary to the public

interest since the evidence established that, on balance, the

public interest factors were neutral.

89. Florida Administrative Code Rule 40C-4.302(1)(b),

requires an applicant to provide reasonable assurance that the

construction, alteration, operation, maintenance, removal, or

abandonment of a surface water management system will not cause

unacceptable cumulative impacts upon wetlands and other surface

waters as set forth in Sections 12.2.8 through 12.2.8.2 of the

Applicant's Handbook. When an applicant proposes to mitigate

adverse impacts within the same drainage basin as the impacts,

and the mitigation fully offsets the impacts, the District will

consider the regulated activity to have no unacceptable

cumulative impacts upon wetlands and other surface waters. See

12.2.8, Applicant's Handbook. The evidence showed that the

mitigation for the project is located within the same drainage

basin as the project and offsets the adverse impacts.

Therefore, the project meets the requirements of Florida

Administrative Code Rule 40C-4.302(1)(b).

90. Florida Administrative Code Rule 40C-4.302(1)(c),

requires an applicant to provide reasonable assurance that the

construction, alteration, operation, maintenance, removal, or

abandonment of a surface water management system "[l]ocated in,

adjacent to or in close proximity to Class II waters or located

in Class II waters or Class III waters classified by the

Department as approved, restricted or conditionally restricted

for shellfish harvesting as set forth or incorporated by

reference in Chapter 62R-7, F.A.C., will comply with the

additional criteria in subsection 12.2.5 of the Applicant's

Handbook . . . ." Since the parties stipulated that the project

is not located in or adjacent to Class II or III waters

classified by the Department for shellfish harvesting, this

criterion is not applicable.

91. Florida Administrative Code Rule 40C-4.302(1)(d),

requires an applicant to provide reasonable assurance that the

construction, alteration, operation, maintenance, removal, or

abandonment of a surface water management system which

constitute vertical seawalls in estuaries or lagoons, will

comply with the additional requirements found in subsection

12.2.6 of the Applicant's Handbook. Since the parties

stipulated that this project does not contain any vertical

seawalls in estuaries or lagoons, this criterion is not

applicable.

92. The belief by many of the Petitioners that the City

will not construct the proposed system as set forth in the

permit application, was not supported by competent substantial

evidence. The evidence was unequivocal, from both the City and

the District, that the system would be plugged so that no water

would flow through the weir at Lake Doyle. In the event the

City desires to seek a modification of the permit issued by the

District for this system, it will be required, in accordance

with Florida Administrative Code Rule 40C-4.331, to apply for

such modification and demonstrate that the application for

modification meets the requirements set forth in Florida

Administrative Code Rules 40C-4.301 and 40C-4.302, just as it

was required to do in the case at issue. If the City were to

open the plug in the system without first seeking a permit, it

would be required to return the system to the condition that

existed before the illegal construction pursuant to Florida

Administrative Code Rule 40C-4.751. Both the City and the

District testified at hearing that they are aware they must

comply with the statutes and rules governing the issuance of

permits. No competent substantial evidence was produced to

prove that either the City or the District would act outside the

law concerning the issuance of environmental resource permits.

Based upon the evidence and testimony at hearing, Petitioners'

fears are unfounded and, should their concerns come to fruition

in the future, they will have adequate remedies at law to

address them.

93. The evidence produced at the final hearing

demonstrates that the City has provided reasonable assurance

that the applicable requirements of the District's rules have

been met and the environmental resource permit should be granted

with the conditions proposed by the District in its Technical

Staff Report.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a Final Order be entered granting the City

of Deltona's application for an environmental resource permit

with the conditions set forth in the Technical Staff Report, and

dismissing the Petitions for Formal Administrative Hearing filed

by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer,

Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048.

DONE AND ENTERED this 27th day of May, 2005, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 2005.

COPIES FURNISHED :

George Trovato, Esquire

City of Deltona

2345 Providence Boulevard

Deltona, Florida 32725

Diana E. Bauer

1324 Tartan Avenue

Deltona, Florida 32738

Barbara Ash, Qualified Representative

943 South Dean Circle

Deltona, Florida 32738-6801

Phillip Lott

948 North Watt Circle

Deltona, Florida 32738-7919

Howard Ehmer

Nina Ehmer

1081 Anza Court

Deltona, Florida 32738

Francell Frei

1080 Peak Circle

Deltona, Florida 32738

Bernard T. Patterson

Virginia T. Patterson

2518 Sheffield Drive

Deltona, Florida 32738

Kealey A. West, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

J. Christy Wilson, Esquire

Wilson, Garber & Small, P.A.

437 North Magnolia Avenue

Orlando, Florida 32801

Gloria Benoit

1300 Tartan Avenue

Deltona, Florida 32738

Gary Jensen

1298 Tartan Avenue

Deltona, Florida 32738

James E. Peake

Alicia M. Peake

2442 Weatherford Drive

Deltona, Florida 32738

Steven L. Spratt

2492 Weatherford Drive

Deltona, Florida 32738

Ted Sullivan

1489 Timbercrest Drive

Deltona, Florida 32738

Kirby Green, Executive Director

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.