12-002161 Srqus, Llc vs. City Of Sarasota And Southwest Florida Water Management District Status: Closed Recommended Order on Tuesday, May 7, 2013.

Summary: Applicant gave reasonable assurance that all criteria satisfied for issuance of ERP to conduct maintenance dredging on a drainage ditch.

ST ATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SRQUS, LLC, )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 2161

)

CITY OF SARASOTA AND SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondent s , )

)

and )

)

SARASOTA COUNTY, )

)

Intervenor. )

______________________________ _ )

RECOMMENDED ORDER

This matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on February 19 and 20, 2013, in Sarasota, Florida .

APPEARANCES

For Petitioner : Erika and Achim M. Ginsberg - Klemmt

Managing Member s

SR QUS, LLC

3364 Tanglewood Drive

Sarasota , Florida 34239 - 6515

For Respondent : Martha A. Moore , Esquire

(D istrict) Southwest Florida Water

Management District

7601 Highway 301 North

Tampa, Florida 33637 - 6758

For Intervenor : Alan W. Roddy, Esquire

( County) David M. Pearce, Esquire

Office of the County Attorney

1660 Ringling Boulevard, Second Floor

Sarasota, Florida 34236 - 6808

STATEMENT OF THE ISSUE

The issue is whether reasonable assurance has been provided

by Sarasota County (County) for the issuance of Environmental

Resource Permit (ERP) N o. 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) .

PRELIMINARY STATEMENT

On May 10, 2012, the Southwest Florida Water Management

District (District) gave notice of its intent to issue a n ERP to

the City. After its first petition was dismissed, without

prejudice, Petitioner filed with the District its Amended

Petition seeking to challenge the proposed agency action. The

matter was then referred by the District to DOAH. The County,

which will be constructing , operating, and maintaining the ditch

pursuant to an interlocal agreement with the City , was

a uthorized to intervene in support of the District's action .

The City has not actively participated in the proceeding . The

case was later transferred from Administrative Law Judge Bram

D.E. Canter to the undersigned.

A Joint Pre - Hearing Stipulation (Stipu lation) was filed by

the parties. By agreement of the parties, t wo minor changes to

the Stipulation were approved.

At the final hearing, Petitioner , a limited liability

corporation represented by its managing members, Erika and Achim

Ginsberg - Klemmt, pr esented the t estimony of Erika Ginsburg -

Klemmt; Sam Johnston , an environmental scientist with

Independent Environmental Consultants, LLC, and accepted as an

expert; John A. Poppell, a registered land surveyor and accepted

as an expert; Douglas Jeffcoat, a professional engineer with the

County Public Works Department; A dn an Javed, a professional

engineer with the City and Project Manager; Tasha Bowers, a

District Environmental Scientist; Brian Loughrey , Administrative

Director for the County Property Apprais er's Office ; Teri Owen,

a registered land surveyor; Bruce Maloney, a County

Environmental Specialist; Steven Lopes, a District professional

engineer; Michelle Hopkins, District ERP Bureau Manager; and

Alan W. Roddy, Deputy County Attorney . Also, Petitione r's

Exhibits 1A through 1I and 1K through 1O, 2A through 2E, 3A

through 3 O , and 4A through 4 J were received in evidence. Late

filed Exhibit 5A is also admitted. The District presented the

testimony of David Kramer, ERP Evaluation Manager and accepted

as an expert; John D. Emery, ERP/WUP Compliance Manager and

accepted as an expert ; and Michelle Hopkins, District ERP Bureau

Manager. Also, District Exhibit s 1 - 5 w ere received in evidence.

The County presented the testimony of Dr. Anthony J. Janicki, an

eco logist with Janicki Environmental, Inc. , and accepted as an

expert; Arjang Ezazi , a professional engineer with Architecture,

Engineering, Consulting, Operations, and Maintenance Technology

Corporation and accepted as an expert; George McFarlane, General

Ma nager of Operations for the County Environmental Utilities

Department ; and A b an Javed, a professional engineer with the

City and Project Engineer. Also, County Exhibits 1 - 3 2 were

received in evidence. Two members of the general public

presented testimony in support of the project pursuant to

section 120.57(1)(b) , Florida Statutes : Philip Dasher and

James Magee.

Finally, the undersigned granted (a) the County's request

to take official recognition of the case of City of Sarasota and

Sarasota County v. SRQUS, LLC, Irish American Management

Services Limited I, L.P. and Irish American Management Services

Limited, Inc. , Case No. 2013 - CA - 1 140 - NC (Fla. 12th Cir. Ct.,

Sarasota Cnty.) , a civil action filed on February 6, 2013, to

resolve a property dispute betw een those parties ; (b) the

District's request to take official recognition of chapter 373 ,

rule chapter 40 D - 4, and E nvironmental Resource Permi tting

Information Manual Part B, Basis of Review (BOR) (December 29,

2011), incorporated by reference in rule 40 D - 4.091(1) ; and

(c) Petitioner's request to take official recognition of the

Recommended and Final Orders issued in Case No. 00 - 2522 ,

chapter 403, section 373.016, rule chapters 62 - 25, 62 - 160,

62 - 302, 62 - 303, 62 - 345, 62 - 624, and 62 - 785, the "ERP Oper ating

Agreement," S ection 401 of the federal Clean Water Act ,

33 U.S.C. § 13 41 , and the City and County's First Amended

Complaint filed in the circuit court action . A dispute over the

amount of fees due Petitioner's expert witness , Sam Johnston,

w ho was deposed by the County before hearing, has been resolved

by separate order .

A T ranscript of the hearing ( four volumes) has been

prepared. Proposed Findings of Fact and Conclusions of Law were

timely filed by the parties, and they have been considere d in

the preparation of this Recommended Order.

FINDINGS OF FACT

A. Parties

1. 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.

2. The City claims ownership or control of all of the

project area to be addressed under the permit. The C ity

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.

3. 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.

4. The County submitted the application pursuant to an

interlocal agreement with the C ity and will construct, operate,

and maintain the project if the permit is issued.

B. The Project

5. U.S. Highway 41, also known as Tamiami Trail, travels

through downtown Sarasota. During rainy months, between

Fruitville Road and Second Street, U.S. Hi ghway 41 experiences

frequent roadway flooding.

6. 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 adjo ining Sarasota Bay. However, it does not

directly discharge into Sarasota Bay.

7. 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 th e stormwater system are

addressed under this permit.

8. 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 con veyed to a marina basin adjoining Sarasota Bay.

9. 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.

10. Pursuant to an earli er 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 fl ow. 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 f requent.

11. 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. Accumulate d

sediments in the ditch are approximately four feet thick at the

eastern end and become thinner at the western end of the ditch.

12. 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.

13. Aside from the ditch improvements being proposed by

the County, the only other remedy is to pipe the ditch, which is

cost - prohibitiv e and would defeat the County's goal of keeping

as much desirable vegetation in place as possible.

14. To address flooding and maintenance concerns, on

September 8, 2011, the C ounty submitted an ERP application to

the District to seek authorization to dre dge 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 i nterlocal stormwater

agreement.

15. 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.

16. The proposed proje ct 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.

C. The Property Dispute

17. 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 app lication 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.

18. A recently filed circuit court act ion 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.

19. 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 ne cessary 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.

20. Reasonabl e 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 owner ship or other legal control of the

property necessary to construct the project.

D. Notice Requirements

21. 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 prov ides 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 appli cation with so - called

eminent domain noticing, which consists of (a) written notice of

District receipt of the application , and (b) written notice of

a gency action on the application. Persons entitled to eminent

domain noticing are owners of property loca ted within the

proposed project area as identified in the county property

appraiser's records within 30 days prior to the filing of the

application.

22. The purpose of the District's eminent domain noticing

provision is to provide notice and an opportunit y to be heard to

owners of property subject to being condemned or otherwise

acquired by the applicant for part of the project area.

23. As originally submitted, the application proposed some

activities extending approximately ten feet into the marina

basi n 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.

24. 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.

25. Be cause seagrasses were observed growing at the end of

the ditch, the County responded to the RAI by scaling back the

project to confine acti vities 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).

26. The County and District ackno wledge 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 (D EP) for a n ERP

to construct a 4,760 - square foot, ten - slip docking facility on

its adjacent submerged lands in the marina basin .

27. The lack of notice has not prevented Petitioner from

challenging the project or has otherwise prejudiced it. Having

rec eived actual notice of the permit, Petitioner filed a timely

objection and request for hearing in this matter.

28. Petitioner contends that while it does not oppose the

ditch dredging, it would have wanted an opportunity to suggest a

re - design of the ditc h 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 al ternative designs to maximize the

potential for recreational use of the drainage canal.

29. There is no requirement for ERP applicants to provide

alternative designs to maximize potential public recreational

uses. Requiring the County to do so would impo se requirements

that go beyond the conditions for permit issuance.

E. ERP Permitting Criteria

30. To obtain an ERP, a permit applicant must provide

reasonable assurance that the proposed activities will not cause

adverse impacts to water quality, water q uantity, 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 cu mulative

impacts upon wetlands and other surface waters.

31. The conditions for issuance of an ERP are set forth in

rule s 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.

32. 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 40 D - 4.302(1)(c) and (d),

which concern s 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.

33. Based on the parties' Stipul ation, at issue is w hether

reason able assurance has been provided that the proposed

activities w ill not cause adverse water quantity impacts to

receiving waters and adjacent lands (40D - 4.301(1) ( a)) ; w ill not

adversely impact the value of functions provided to fish and

wildlif e by wetlands and other surface waters (40D - 4.301(1)(d)) ;

w ill not adversely affect the quality of receiving waters such

that applicable state water quality standards will be violated

(40D - 4.301(1)(e)) ; and w ill not cause adverse secondary impacts

to the w ater 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) .

a. Water Quantity Impacts

34. 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 provi de flood relief. Modeling

results demonstrate a reduction in flood stages not just for

U.S. Highway 41 but for other adjoining properties.

35. The evidence establishe s 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.

36. Improvements proposed to the ditch will increase its

storage capacity and allow water to fl ow 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.

37. 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 adjac ent

submerged lands owned by Petitioner .

b. Impact on Value of Functions

38. 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. "

39. The existing ditch provides limited ecological

functions for fish and wildlife, as it contains sig nificant

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 replan ting

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 resu lt 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.

40. Reasonable assurance has been provided that the

project will n ot adversely impact the value of functions being

provided to fish and wildlife and will actually improve the

ecological functions provided by the ditch.

c . Quality of Receiving Waters

41. Rule 40D - 4.301(1)(e) requires that reasonable

assurance be provi ded 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 c hapters 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.

42. No evidence was presented by Petitioner that the

activities will adversely affect the groundwater protection

provisions of rule chapter 62 - 522. The proposed ditch

alt erations do not involve activities relating to these state

water quality standards.

43. 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 con struction 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 o n 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 shor t - 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 c onstruction

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 star ting 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.

44. As to possible long - term water qua lity 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

re moving 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.

45. The prop osed 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.

46. Improvements in wate r 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.

47. 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.

48. Petitioner contends that reasonable assurance has not

been provided to show th at 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 canno t 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 .

49. 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 int o 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.

50. In addition to identifying the positive b enefits 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.

51. Because the project does not generate pollutants, the

pro posed 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 stand ards.

d. Secondary Impacts

52. R ule 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 projec t 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 Saraso ta 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.

e. Public Interest Test

53. 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 i nterest.

54. 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.

55. 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 w heth er the activity will adversely affect

the public health, safety, or welfare or the property of others;

w hether the activity will adversely affect the conservation of

fish and wildlife, including endangered or threatened species,

or their habitats; w hether the activity will adversely affect

navigation or the flow of water or cause harmful erosion or

shoaling; w hether the activity will adversely affect the fishing

or recreational values of marine productivity in the vicinity of

the activity; w hether the activ ity will be of a temporary or

permanent nature; and t he current condition and relative value

of functions being performed by areas affected by the proposed

activity.

56. The evidence establishes that the project will reduce

flooding during normal stages a nd 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 othe rs.

57. 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 mitig ated 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 o f 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.

58. 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.

59. 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 mar ina basin and Sarasota Bay.

60. Petitioner raised concerns regarding the amount of

floatable material that will be discharged from the ditch as a

result of removal of mangroves. As provide d 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 temporar ily 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 resu lt 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.

61. 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 N PDES 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 tha t 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, il licit connections, or other water

quality concerns in the stormwater emanating from the drainage

basin served by the ditch, and not the ERP regulatory program.

62. Having weighed and balanced the six applicable

criteria, and based upon the evidence presen ted, the County has

provided reasonable assurance that the proposed activities will

not be contrary to the public interest.

f. Cumulative Impacts

6 3 . Rule 40D - 4.302(1)(b) requires an applicant to

demonstrate that the proposed activities will not cause

un acceptable cumulative impacts on wetlands and other surface

waters, as further described in BOR sections 3.2.8 through

3.2.8.2.

6 4 . 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 p rovided 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.

g. Impaired Receiving Waters

6 5 . 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.

6 6 . 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 standa rds, 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 demons t rate that f or 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.

6 7 . 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 demonstra tes that the

project will not contribute to this water quality violation.

6 8 . 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

exi sting sediments contain mercury deposits, removal of the

sediments reduce a source of mercury that can be ingested by

fish in the receiving waters.

F. Water Quality Certification

69 . Petitioner contends that Specific Condition No. 9 of

the proposed permi t, 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) an d (j).

7 0 . As explained by unrefuted testimony of the District,

t he 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

fed eral 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.

Grantin g 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.

7 1 . Pursuant to ru le 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.

7 2 . 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 40 1 .

DEP has also established categories of activities for which

water quality certification will be conside red 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.

7 3 . The types of pe rmitting 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 Arm y 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 e xpressly 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.

7 4 . Proposed Specific Condition No. 9 of the perm it

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.

7 5 . Altho ugh 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 s tandards 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 stan dards and is not

expected to contribute to the re ceiving 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.

7 6 . 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.

CONCLUSIONS OF LAW

7 7 . The District and County have not dispute d that

Petitioner presented sufficient evidence to establish that it s

substantial interests could reasonably be affected by the

issuance of a permit.

78 . Section 120.569(2)( p ) is applicable to this case. It

establishes a new order of presentation and burden of proof in

permit challenge cases such as this. Permit challenge cases

under chapter 373 now proceed in three phases: Phase I is the

submittal by the applicant and the agency of the application,

notice of intent to approve the permit, and other relevant

material submitted to the agency which constitute a prima facie

case demonstrating entitlement to the proposed permit; Phase I I

is the submittal by the chall e nger of evidence supporting the

challenge of the proposed permit; and Phase III is the submittal

by the applicant and agency of any rebuttal evidence

demonstrating that the application meets the conditions of

permit issuance. See FINR II, Inc. v . CF Indus., Inc. , Case No.

11 - 6495 , 2012 Fla. ENV LEXIS 49 at * 48 - 49 (Fla. DOAH April 30,

2012), adopted , OGC Case No. 11 - 1756, 2012 Fla. E NV LEXIS 50

(Fla. DEP June 6 , 201 2 ).

79 . The burden of proof in permit challenge cases is now

upon the challenger , who has the "burden of ultimate persuasion

and has the burden of going forward to prove the case in

opposition to the permit by competent and substantial evidence."

§ 120.569(2)(p), Fla. Stat.

8 0 . Because this is a de novo proceeding, the parties are

n ot limited to the permit file and may present additional

evidence not included in the permit application. See, e.g. ,

Hamilton Cnty. Bd. of Cnty. Comm. v. State Dep't of Envtl. Reg. ,

587 So. 2d 1378, 1387 (Fla. 1st DCA 1991).

8 1 . In order to provide rea sonable assurance that the

proposed activity will not be harmful to water resources of the

District, an applicant must satisfy the conditions for issuance

set forth in rules 40D - 4.301 and 40D - 4.302 and the BOR

incorporated by reference in rule 40D - 4.091(1) .

8 2 . Reasonable assurance means "a substantial likelihood

that the project will be successfully implemented." Metro. Dade

Cnty. v. Coscan Fla., Inc. , 609 So. 2d 644, 648 (Fla. 3rd DCA

1992). Reasonable assurance does not require absolute

guarantees tha t the applicable conditions for issuance of the

permit have been satisfied. See, e.g. , Crystal Springs

Recreational Pres., Inc. v. S w. Fla. Water Mgmt. Dist. , Case No.

99 - 1415, 2000 Fla. ENV LEXIS 41 at *98 (Fla. DOAH Jan. 27, 2000 ;

SWFWMD Feb. 23, 2000).

8 3 . An ERP must be based solely on compliance with the

applicable permitting criteria. Petitioner's assertion that

voluntary recreational uses or prevention of upstream floatables

should be included in the design of the County's project is not

based u pon compliance with the applicable permitting criteria

and is rejected.

8 4 . The District's interpretation and implementation of

rule and statutory provisions relating to requirements

addressing water quality standards, impaired water quality, net

improvem ents, and waiver of water quality certification under

Section 401 of the Clean Water Act are supported by competent

substantial evidence.

8 5 . Petitioner seeks denial of the permit on the ground

that it did not receive notices consistent with rule 40D -

1.60 3(9)(a) and (b). The evidence establishes that while

Petitioner may have been entitled to notice of District receipt

of the application when submitted, due to its ownership of

submerged lands located beyond the ditch, it was not entitled to

notice of agen cy action, given the reduction in project area to

City right - of - way. At the time the application was submitted,

property appraiser records showed the entire ditch and dredge

area as being within City right - of - way. Although not provided

eminent domain not icing, Petitioner nevertheless had actual

notice of the agency action.

8 6 . Petitioner has not established that the failure to

provide it with eminent domain notices has prejudiced it in any

way in its ability to timely request a hearing on the

application or to assert its claims in this proceeding, or that

such lack of notice has otherwise impaired either the fairness

of the proceedings or the correctness of the action. Thus, any

failure to comply with the noticing requirements of rule 40D -

1.603(9) is at most harmless error and does not provide a basis

for permit denial. See , e.g. , Carter v. Dep't of Prof'l Reg. ,

633 So. 2d 3, 6 (Fla. 1994); Stuart Yacht Club & Marina, Inc. v.

State Dep't of Natural Res. , 625 So. 2d 1263, 1269 (Fla. 4th DCA

1993).

8 7 . District rules require applicants to demonstrate

sufficient ownership or other legal control of the property that

contains the proposed project area. When the applicant is an

entity with eminent domain authority, a lack of ownership or

control of a proper ty located within a portion of the proposed

project area is not a bar to permit issuance. Instead, the

rules require that the permit be conditioned to prohibit

construction activities until ownership or other legal control

of all real property within the project area is obtained.

Consistent with this requirement, the permit is conditioned to

prohibit any construction until such time as the City or the

County obtains needed ownership or other control on which the

ditch is located. The permit term of five years allows the

permittee to obtain any needed property ownership or legal

control and to construct the project.

88 . As to disputed issues of property ownership, neither

the District nor DOAH has jurisdiction over real property

disputes. See § 26.012(2) (g), Fla. Stat. Therefore,

Petitioner's claim of ownership of a portion of the ditch is not

addressed in this Recommended Order.

8 9 . Petitioner has failed to meet its burden of showing

that the permit should not be issued. See § 120.569(2)(p), Fla.

Stat . To the contrary, the preponderance of the evidence

demonstrates that reasonable assurance has been provided that

all applicable permitting criteria have been met.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

REC OMMENDED that the South west 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 , 20 1 3 , in Talla hassee,

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 201 3 .

COPIES FURNISHED:

Blake C. Gu illery , Executive Director

South west Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Erika Ginsberg - Klemmt

SRQUS, LLC

3364 Tanglew ood 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

Fou rni er, Connolly, Warren & Shamsey , P.A.

One South School Avenue, Suite 700

Sarasota, Florida 34237 - 6014

NOT ICE 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 thi s matter.