82-001639 Strazzulla Brothers, Inc. vs. South Florida Water Management District Status: Closed Recommended Order on Wednesday, November 30, 1983.

Summary: Petitioner's application for surface water management permit denied for failure to abide by the statutory and rule guidelines.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STRAZZULLA BROTHERS, INC., )

)

Petitioner, )

and )

)

ACME IMPROVEMENT DISTRICT, )

)

Intervenor, )

)

vs. ) CASE NO. 82-1639

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondent, )

and )

)

FLORIDA AUDUBON SOCIETY, )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

This matter came on for hearing on August 22 and 23, 1983, in West Palm

Beach, Florida, before the Division of Administrative Hearings and its duly

appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner Strazzulla: John S. Wilbur, Jr., Esquire

Brothers, Inc. and Acme Post Office Box 2775

Improvement District Palm Beach, Florida 33480-2775

For Respondent South: Irene Kennedy Quincey, Esquire

Florida Water Management Post Office Box "V"

District West Palm Beach, Florida 33402

For Intervenor Florida: Mr. Charles Lee

Audobon Society 1101 Audubon Way

Maitland, Florida 32751

This case arose on Petitioner's application for surface water management

and right-of-way occupancy permits, and Respondent's notice of intent to deny.

The application involves a parcel consisting of approximately 1,393 acres in

Palm Beach County (hereafter referred to as "the property").

The property and its proposed agricultural development have been the

subject of various administrative proceedings dating back to 1977. Through this

process and by stipulations, the water quality issue has been resolved and the

request for use of Respondent's right-of-way has been dropped. The application

for the dredge and fill permit from the Department of Environmental Regulation

has been approved, subject to approval by Respondent. The land is zoned for

agricultural use by Palm Beach County, and approval is being sought from the

Army Corps of Engineers.

The parties submitted proposed findings of fact and conclusion of law. To

the extent these proposed findings have not been adopted or otherwise

incorporated herein, they are found to be subordinate, cumulative, immaterial,

unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. The property has been annexed into the Acme Improvement District

(Intervenor) by Special Act of the Florida Legislature. Petitioner purchased

487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner

purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the

State of Florida on or about March 4, 1960. The balance of the land

constituting the property is a 224 acre hiatus tract owned by Marshall Brown

with whom Petitioner has an agricultural use agreement. A parcel of

Petitioner's land within the property includes a commercial lease to Malrite

Corporation for siting a television antenna, consisting of 111 acres in the

southeast corner of the property. This area is within the permit application.

2. The tract is otherwise undeveloped and is currently submerged or semi-

submerged during much of the year. Petitioner's development plan envisions

drainage of this tract and use of the property for cultivation.

3. The property is bounded on the north by Acme Improvement District, on

the east by a subdivision called Homeland, on the west by Water Conservation

Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped

lands. The boundaries of the Loxahatchee Refuge actually encroach by

approximately 300 feet into the property.

4. The property development plan, which is the basis of this application,

was prepared by the engineering firm Gee and Jensen. This plan calls for the

creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This

reservoir would hold the internal stormwater runoff for subsequent agricultural

irrigation. Perimeter dikes are to be constructed to prevent surface water

runoff from outside areas entering the project and perimeter ditches are to be

developed for the deliverance of stormwater runoff from the internal

agricultural system to proposed pump stations located at the southwest corner of

the development area.

5. On the northwest corner of the proposed reservoir, the existing Acme

Improvement District pump station No. 2 would be increased in capacity by 27,000

gallons per minute. Under Acme's charter and its statutory annexation of the

property, the proposed reservoir and water management works would become a unit

of development controlled by Acme. Under Petitioner's agreement with the hiatus

tract owner, Acme would be the exclusive manager and operator of the proposed

system, and the property would become an integral part of Acme's water

management system.

6. The Acme Water Improvement District is not solely an agricultural

support enterprise but serves the various uses which may evolve within its

boundaries. The area is currently zoned for limited residential development as

well as agricultural. The television antenna facility located on the property

is an example of a non-agricultural use.

7. Petitioner's surface water management system is proposed to discharge

into the Acme system, which in turn discharges offsite. Discharge into the Acme

system is of a limited nature, but the system is designed to discharge for

successive days under wet conditions. The design discharge is not limited to an

extreme rainfall event but would probably occur during the traditional

hydrologic cycle of south Florida. Under conditions which reflect actual

rainfall over the past 20 years, the proposed surface water management system

would have discharged 19 out of 20 years into the Water Conservation Area

( Loxahatchee Refuge). In some years this discharge would have continued for

approximately three months.

8. The unrebutted testimony of expert witnesses called by Respondent

established that the entire 1,393 acre tract referred to herein as "the

property" is a freshwater wetland habitat. The western half is emergent marsh

land, while the eastern half is forested with woody species.

9. The wetlands on the property form a valuable wildlife habitat.

Environmentally, they are in excellent condition. This area has not been

adversely affected by drainage, fire or exotic species. These marshes also have

good habitat diversity. The populations of aquatic invertebrates and forage

fishes that are produced in these Everglades marshes are utilized by the many

species of wading birds that feed in these wetlands.

10. The proposed project will adversely affect wildlife species, including

a variety of wading birds which will likely be unable to relocate. While this

is undesirable from an environmental standpoint, conversion of this land would

provide benefits from an agricultural standpoint, and would create additional

water recreational facilities.

CONCLUSIONS OF LAW

11. In order to obtain a surface water management permit, an applicant is

required to meet the conditions set out at SFWMD Rule 40E-4.301, Florida

Administrative Code. The rule provides:

(1) In order to obtain a permit under this

chapter, an applicant must give reasonable

assurances that the surface water management

system:

(a) provides adequate flood protection and

drainage,

(b) will not cause adverse water quality and

quantity impacts on receiving waters and

adjacent lands regulated pursuant to chapter

373, Florida Statutes,

(c) will not cause discharges which result

in any violation, in surface waters of the

state, of the standards and criteria of

chapter 17-3,

(d) will not cause adverse impacts on

surface and groundwater levels and flows,

(e) will not cause adverse environmental

impacts,

(f) can be effectively operated and

maintained,

(g) will not adversely affect public health

and safety,

(h) is consistent with the requirements of

other public agencies,

( i) is, in the opinion of the the most

publicly acceptable alternative available,

(j) will serve a proposed land sue which:

1. for conceptual approvals, is

compatible with the local government

comprehensive plan or is compatible with the

existing zoning for the area,

2. for construction and operation

permits, is compatible with the existing

zoning for the area,

(k) meets any applicable basin criteria in

chapter 40E-41,

(l) will not otherwise be harmful to the

water resources of the District, and will not

interfere with the legal rights of others as

defined in rule 17-40.07,

(m) is not against public policy, and

(n) will meet the general and specific

criteria in the document described in

paragraph 40E-4.091(1)(a). (emphasis added)

12. SFWMD has adopted criteria for determining water quantity impacts of a

proposed system in a document entitled "Basis of Review for Surface Water

Management Permit Applications Within the South Florida Water Management

District - December, 1982." See Rule 40E-4.091(1)(a), Florida Administrative

Code.

13. Paragraph 3.1.5.5 of the Basis of Review sets forth the environmental

criteria as:

a. Environmental features directly related to

the water resources of the District, such as:

( i) Wetlands habitat except those previously

impacted by drainage, land clearing, earthwork,

or those which have been invaded by exotic

species and are in a state of environmental

decay.

(ii) Natural waterbodies.

b. Environmental features which may be

indirectly related to the water resources of

the District, such as:

( i) Intermittent ponds.

(ii) Significant habitat diversity support

systems, usually consisting of highly

productive mixed upland and wetland systems

with appropriate buffer areas.

c. Environmental features which are not

related to the water resources of the District,

such as:

( i) Unique upland habitats, usually

consisting of tropical hardwood tree hammocks

and beach dunes.

d. Preferred habitat for rare or endangered

species of plants or animals will be

identified. (emphasis added)

14. The property at issue here contains the wetlands habitat described

above. These wetlands will be destroyed if the property is developed as

proposed. Thus, the applicant here has failed the give the required "reasonable

assurances that the [proposed] surface water management system . . . will not

cause adverse environmental impacts . . . [or] will not otherwise be harmful to

the water resources of the District. . .

15. The above rules which are the principal basis for denial of the

application are promulgated pursuant to Section 373.044, Florida Statutes

(1981). Thus, the exemptions to Chapter 373, set forth in Section 373.406,

Florida Statutes (1982), if any are applicable, would require that the above

discussed objections be set aside. This section provides in part:

(2) Nothing herein, or in any rule, regulation,

or order adopted pursuant hereto, shall be

construed to affect the right of any person

engaged in the occupation of agriculture,

silviculture, floriculture, or horticulture to

alter the topography of any tract of land for

purposes consistent with the practice of such

occupation. However, such alteration may not

be for the sole or predominant purpose of

impounding or obstructing surface waters.

(3) Nothing herein, or in any rule, regulation,

or order adopted pursuant hereto, shall be

construed to be applicable to construction,

operation, or maintenance of any agricultural

closed system. However, part II of this

chapter shall be applicable as to the taking

and discharging of water for filling,

replenishing, and maintaining the water level

in any such agricultural closed system. This

subsection shall not be construed to eliminate

the necessity to meet generally accepted

engineering practices for construction,

operation, and maintenance of dams, dikes, or

levees.

16. The exemption set forth in subparagraph (2) allows a person engaged in

agriculture to alter the topography of his land so long as the primary purpose

is not water impoundment or obstruction. Here, that is the primary purpose of

the project and the exemption is therefore not applicable. Petitioner argues

that the sole purpose of the alteration is to convert the property into

agricultural production. However, this argument begs the question since this

statutory exemption assumes, as its point of departure, an ultimate agricultural

purpose.

17. The exemption set forth in subparagraph (3) is also inapplicable since

the proposed water management system does not meet the statutory definition of a

"closed system," which is defined in Subsection 373.403(6), Florid Statutes

(1982 Supp), as follows:

"Closed system" means any reservoir or works

located entirely within agricultural lands

owned or controlled by the user and which

requires water only for the filling,

replenishing, and maintaining the water level

thereof. 1/

18. Petitioner correctly identifies Acme as the "user" of the water

management system at issue here. Petitioner's reservoir and pumping facilities

will become a part of the Acme system and will be operated by Acme. Petitioner

is likewise correct that the exemption is not defeated because of periodic water

discharges, since this feature is not prohibited in defining a "closed system."

19. However, the reservoir and works will not be "located entirely within

agricultural lands" as required by the exemption. Rather, the lands, while

predominantly agricultural, contain other uses (e.g. T.V. antenna facility) and

are thus mixed rather than agricultural. Further, since these lands are not

currently "owned or controlled by the user," the exemption does not apply. See,

Pal-Mar Water Mgt. v. Board of County Commissioners, 384 So.2d 232 (Fla. 4th DCA

1980).

20. Petitioner argues that its purchase of the land from the State of

Florida precludes denial of its proposed use. However, there was no showing

that this transaction included any representation upon which Petitioner could

have relied. As stated by the Court in Special Disability Trust Fund v. Master

Distributors, 418 So.2d 1124, 1125 (Fla. 1st DCA 1982):

In order to raise an estoppel against the

state there must be (1) a representation by

the party estopped to the party claiming the

estoppel as to some material fact, (2) a

reliance upon the representation by the party

claiming estoppel, and (3) a change in such

party's position caused by his reliance upon

the representation to his detriment.

21. Petitioner's argument of res judicata must likewise be rejected.

Although it is unfortunate that permits must be obtained from a multiplicity of

agencies, there is no authority to preclude Respondent from exercising its

statutory jurisdiction under Chapter 373, Florida Statutes, and rules

promulgated thereunder. It should be noted that Rule 17-1.04 (8)(a), Florida

Administrative Code, delegates responsibility from DER to SFWMD for surface

water management permitting pursuant to Part IV, Chapter 373, Florida Statutes.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED:

That Respondent enter a final order denying the application.

DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida.

___________________________________

R. T. CARPENTER

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November, 1983.

ENDNOTE

1/ Further applicable definitions contained in Section 373.403, Florida

Statutes (1982 Supp), are as follows:

(4) "Reservoir" means any artificial or

natural holding area which contains or will

contain the water impounded by a dam.

(5) "Works" means all artificial structures,

including, but not limited to, ditches, canals,

conduits, channels, culverts, pipes, and other

construction that connects to, draws water from,

drains water into, or is placed in or across

the waters in the state.

COPIES FURNISHED:

John S. Wilbur, Jr., Esquire

Post Office Box 2775

Palm Beach, Florida 33480-2775

Irene Kennedy Quincey, Esquire

Post Office Box "V"

West Palm Beach, Florida 33402

Mr. Charles Lee

1101 Audubon Way

Maitland, Florida 32751

John R. Maloy, Executive Director

South Florida Water Management District

Post Office Box "V"

West Palm Beach, Florida 33402

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STRAZZULLA BROTHERS, INC.,

Petitioner,

and

ACME IMPROVEMENT DISTRICT,

Intervenor,

vs. DOAH Case No. 82-1639

ORDER NO. 84-09

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Respondent,

and

FLORIDA AUDUBON SOCIETY,

Intervenor.

_______________________________/

ORDER

The Hearing Officer's Recommended Order came to be heard before the

Governing Board of the South Florida Water Management District on the 12th day

of January, 1984. In addition, the following pleadings were considered by the

Governing Board: Petitioner's "Motion for Reconsideration and/or Remand for

Further Proceedings Pursuant to Florida Statutes 120.57" and "Stipulation" both

filed on December 14, 1983; Respondent's "Reply to Motion for Reconsideration

and Stipulation filed by Petitioner Strazzulla Brothers, Inc." filed December

23, 1983; Intervenor Florida Audubon Society's "Motion to Strike" filed December

16, 1983; "Exceptions to Hearing Officer's Recommended Order" filed by

Petitioner Strazzulla Brothers, Inc., on December 16, 1983; "Exceptions to

Recommended Order" filed by Respondent South Florida Water Management District

on December 14, 1983; and "Exceptions of Intervenor Florida Audubon Society"

filed December 16,1983.

The Governing Board has considered the above matter and heard from counsel

for all parties. Because the exceptions filed by the parties had the affect of

disputing three Findings of Fact within the Hearing Officer's Recommended Order,

each of the members of the Governing Board was furnished a complete transcript

of the hearing held by the Hearing Officer and each Governing Board member has

read the transcript.

A) With regard to the "Motion for Reconsideration and/or Remand for Further

Proceedings Pursuant to Florida Statutes 120.57" and "Stipulation" filed by

Petitioner the Governing Board:

Denies the Motion. The Motion and request constitute a materially

different application than the one filed with the South Florida Water Management

District and the subject matter of this hearing. Under Chapter 120.60, sections

373.116, and 373.413, Florida Statutes, and Rule 40E-1.603(3), Florida

Administrative Code, applications for surface water management permits must be

appropriately noticed. Acceptance of the Motion would constitute a denial of

notice and due process afforded by statute and rule to substantially affected

persons and said Motion is denied.

B) With regard to the "Motion to Strike" filed by Intervenor, Florida

Audubon Society, the Governing Board takes no action. The denial of the Motion

for Reconsideration under paragraph A operates to make any consideration of the

Motion to Strike moot.

C) With regard to the exceptions to the Finding of Fact filed by

Petitioner, the Governing Board acts as follows:

Exception No. 1 Approved. A review of the record indicates the plan of

development does not encroach upon the L-40 right of way.

Exception No. 2 Denied. A review of the record does not reveal the finding

of the Hearing Officer is misleading as to the characterization of discharge

offsite.

D) With regard to the exception to the Findings of Fact filed by

Respondent, South Florida Water Management District, the Governing Board acts as

follows:

Exception No. 1 Approved. A review of the record indicates the onsite

reservoir operates as an irrigation reservoir and for detention of storm water

prior to discharge offsite.

E) The Governing Board adopts the Findings of Fact, Conclusions of Law and

Recommended Order of the Hearing Officer, except as hereby modified.

(1) Modification of paragraph 3 under Findings of Fact, page 2 to read "The

property is bounded on the north by Acme Improvement District, on the east by a

subdivision called Homeland, on the west by Water Conservation Area #1, also

known as the Loxahatchee Refuge, and on the south by undeveloped lands. The

plan does not encroach on the right of way of Conservation Area #1 also known as

the Loxahatchee National Wildlife Refuge."

(2) Modification of paragraph 1 under Findings of Fact, page 3 to read "The

property development plan, which is the basis of this application, was prepared

by the engineering firm Gee and Jensen. This plan calls for the creation of a

240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would

hold the internal storm water runoff for subsequent agricultural irrigation and

detention of storm water runoff prior to offsite discharge. Perimeter dikes are

to be constructed to prevent surface water runoff from outside areas entering

the project and perimeter ditches are to be developed for the deliverance of

storm water runoff from the internal agricultural system to proposed pump

stations located at the southwest corner of the development area."

(3) Modification of paragraph 3, page 7 under Conclusions of Law to read

"Petitioner correctly identifies Acme as the "user" of the water management

system at issue here. Petitioner's reservoir and pumping facilities will become

a part of the Acme system and will be operated by Acme. The closed system

exemption does not apply to projects which propose to discharge offsite. The

requirement that the level of a reservoir be maintained is in reference to water

needed to replenish the water supply in the reservoir. That activity is

regulated by a Part II Chapter 373 permit.

"Petitioner's proposed system is designed to detain storm water and then

discharge offsite during storm events. This use of a reservoir and works so as

to detain the agricultural storm water prior to discharge cannot constitute a

closed system."

Based upon the above adoption of the Hearing Officer's Recommended Order as

modified, the Governing Board denies the issuance of the permit as recommended

by the Hearing Officer in accordance with the terms of this order.

DONE and ORDERED at a Public Meeting in West Palm Beach, Palm Beach County,

Florida, this 12th day of January, 1984.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

BY ITS GOVERNING BOARD

By:_______________________________________

Chairman

(Corporate Seal)

ATTEST:

By: ______________________

Secretary

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished to

JOHN S. WILBUR, JR., Post Office Box 2775, Palm Beach, Florida 3348a, and

CHARLES LEE, Vice President, Florida Audubon Society, 1101 Audubon Way,

Maitland, Florida 32751, by United States Mail, this 17th day of January, 1984.

FILED WITH THE CLERK OF THE SOUTH

FLORIDA WATER MANAGEMENT DISTRICT

ON January 13, 1984

By: _______________________

Jean Guy

DEPUTY CLERK