83-000082 William H. And Patricia H. Mellor, Et Al. vs. County Line Drainage District And South Florida Water Management District
 Status: Closed
Recommended Order on Thursday, September 29, 1983.

View Dockets  
Summary: Application for permit to use works and lands of district should be granted. Evidence showed rules reasonably assured to be met.




14MELLOR, et. al., )


19Petitioner, )

21and )




32Intervenor, )


35vs. )






52Respondents. )



57Pursuant to notice, this cause came on for administrative hearing before P.

69Michael Ruff, duly designate Hearing Officer of the Division of Administrative

80Hearings, on April 20, 1983, at Fort Myers, Florida.


90For Petitioners: William H. and

95Patricia H. Mellor pro se

1005829 Riverside Lane

103Fort Myers, Florida 33907


108James D. English, Jr., pro se

114Route 2, Box 85

118Alva, Florida 33920

121For Intervenor: Marilyn Wnek Miller, Esquire

127John Tileston, Esquire

130Post office Box 398

134Fort Myers, Florida 33902-0398

138For Respondent: Anne Longman, Esquire

143County Line Terry L. Lewis, Esquire

149Drainage District Post Office Box 1876

155Tallahassee, Florida 32301

158For Respondent: Irene Kennedy Quincey, Esquire

164South Florida Post Office Box "V"

170Water Management West Palm Beach, Florida 33402


178This cause was initiated on an application filed August 16, 1982, by

190William Taylor, as President of County Line Drainage District (CLDD), wherein

201CLDD requested a permit for the use of District lands and works of the

215Respondent South Florida Water Management District (SFWMD). This project is

225located in all or parts of Sections 13 and 14; Township 43 South; Range 27 East,

241Lee County, Florida. The permit would authorize the use of a strip of land

255adjoining SFWMD's Spoil Area "M." SFWMD, on August 5, 1982, informed CLDD by

268letter that in order to continue using part of a certain spoil area owned by the

284District in Lee County, Florida, that CLDD apply for a permit authorizing "use

297of the works of the District." CLDD accordingly made application for such a

310permit on August 16, 1982. That application was supplemented twice upon a SFWMD

323request in October, 1982, and in February, 1983. In essence, CLDD seeks to use

337the west, north and east perimeter or rim canals of Spoil Area "M" owned by

352SFWMD, which it has used since approximately May of 1972. It seeks to continue

366draining or moving water from its land north of the spoil area into these rim

381canals and through a ditch beginning at a point 50 feet north of the northwest

396corner of the Mellor property, running southwest across the Daniels' property

407into Spanish Creek. The surface water from CLDD lands would thus be discharged

420from the western rim ditch of Spoil Area "M" into the "Daniels' ditch" and

434thence into Spanish Creek and the Caloosahatchee River. This operation was

445originally inaugurated by an agreement between CLDD and the Central and South

457Florida Flood Control District (C&SFFCD), the predecessor of SFWMD, entered into

468on October 12, 1972, authorizing CLDD an easement and a 100 foot wide strip of

483land running along the west, north and east sides of Spoil Area "M" (the rim

498ditches). Because of the change in the SFWMD statutory authority, the easement

510could not be renewed and at the end of the 10-year easement period, SFWMD

524notified CLDD that it would have to seek a "right-of-way" permit for use of

538works of the District in order to continue its drainage and water discharge plan

552and operation as it had been conducted theretofore.

560The permit was accordingly applied or and SFWMD's staff recommended permit

571approval. Petitioners William H. Mellor, Patricia H. Mellor and James D.

582English filed requests for formal hearing on December 27, 1982. A Motion for

595Leave to Intervene by Lee County was granted on the basis of its having alleged

610sufficient potential injury within the proper zone of interest protected by

621Chapter 373, Florida Statutes, so that it was entitled to participate in this

634Proceeding and present proof of its alleged potential injury, that is, the

646feared damage caused by the continuation of the subject drainage to a major

659portion of the County's potable water supply from the Caloosahatchee river.

670At the hearing, the Respondents presented 3 witnesses and 11 exhibits in

682support of the permit application. All the exhibits were admitted into

693evidence. The Petitioners in opposition to the grant of the proposed permit,

705the Mellors and Mr. English, presented 3 witnesses and Exhibits A through N.

718Exhibits D, G and M were not admitted into evidence. Lee County presented one

732witness. At the conclusion of the proceeding the parties requested the benefit

744of a transcript of the proceedings and requested an extended briefing schedule,

756which was granted. Proposed findings of fact and conclusions of law were thus

769timely submitted on June 10, 1983.

775All proposed findings of fact and supporting arguments of the parties have

787been considered. To the extent that the proposed findings and conclusions

798submitted by the parties, and the arguments made by the them, are in accordance

812with the findings, conclusions and views stated herein, they have been accepted,

824and to the extent that such proposed findings and conclusions of the parties,

837and such arguments made by the parties, are inconsistent therewith, they have

849been rejected. Certain proposed findings and conclusions have been omitted as

860not relevant or as not necessary to a proper determination of the material

873issues presented. To the extent that the testimony of various witnesses is not

886in accord with the findings herein, it is not credited.

896The issue to be resolved concerns whether the right-of-way permit for

907utilization of works and lands of the SFWMD, to permit CLDD to continue to use

922the west, north and east portions of the drainage ditch surrounding Spoil Area

"935M", should be granted and, necessarily, whether reasonable assurances have been

946provided that the requested use of the District works and land is consistent

959with applicable standards contained in Chapter 373, Florida Statutes, and

969Chapter 40E-6, Florida Administrative Code.


9771. The CLDD was established pursuant to Chapter 298, Florida Statutes, on

989August 4, 1967. Its purpose was to "reclaim" or render the land within its

1003boundaries usable for agricultural purposes. The land comprising the CLDD

1013consists of approximately 3,500 acres in Lee County, mostly planted in citrus

1026trees. Pursuant to the requirements of Chapter 298, Florida Statutes, a "Plan

1038of Reclamation" was prepared by consulting engineers for the CLDD's Board of

1050Supervisors in August, 1967. That plan contains provisions for reclaiming lands

1061within the CLDD's boundaries and for managing and controlling surface water

1072within CLDD.

10742. The method of water control outlined in the 1967 reclamation plan

1086included a dike and ditch system around the boundaries of CLDD with a series of

1101interior canals to carry excess water away from the citrus trees. The land in

1115the north part of he CLDD is higher than the south and water generally,

1129naturally flows from north to south. The interior canals were designed to carry

1142water in accordance with existing contours of the land and eventually discharge

1154excess surface water to the rim ditches on the north and east sides of Spoil

1169Area "M," which is south of the CLDD and which was then owned by the C&SFFCD,

1185the predecessor agency to SFWMD. The system of drainage delineated in that 1967

1198plan, inaugurated pursuant to Chapter 298, Florida Statutes, was put into effect

1210substantially as described therein.

12143. CLDD's 1967 plan was altered somewhat because of an agreement entered

1226into on September 30, 1971, between the CLDD and neighboring landowner Kenneth

1238Daniels. Pursuant to that agreement, the two parties agreed to extend the dike

1251on the west side of the CLDD property and construct a ditch from a point 50 feet

1268north of the northwest corner of the Petitioner Mellor's property, which new

1280ditch was to run southwest across the Daniels' property and connect with Spanish

1293Creek. That ditch or canal would thus connect the western rim ditch of the

1307SFWMD's Spoil Area "M" with Spanish Creek and have the result that surface

1320waters could be discharged from CLDD lands through the western rim ditch of

1333Spoil Area "M" thence through the "Daniels' Ditch" finally discharging into the

1345lower reaches of Spanish Creek. (see Exhibits 1 and 11)

13554. Because the western side or western rim canal of the SFWMD's Spoil Area

"1369M" had not been used under the original plan of reclamation approved by the

1383C&SFFCD, CLDD sought permission from C&SFFCD to use this western rim canal for

1396the purpose stated pursuant to the agreement with Daniels. Thus, CLDD's

1407proposed use of the rim canal of Spoil Area "M" would be confined to the

1422western, northern and eastern perimeter canals and not the southern boundary

1433canal. All affected landowners, Kenneth Daniels as well a Jake and Lilly Lee,

1446agreed to those proposed installations and uses. The resulting agreement

1456between CLDD and C&SFFCD was entered into on October 12, 1972, and describes the

1470flood control District land to be used by CLDD as a 100 foot wide strip running

1486along the west, north and east sides of Spoil Area "M," also know as "Aspic."

1501This 100 foot wide strip of land running thusly is co-extensive with the rim

1515ditch of Spoil Area "M." The CLDD was mandated by this agreement to install 72-

1530inch pipes in the rim ditch at the southwest corner of the spoil area, just

1545north of the Mellor property, giving a point of discharge from the western rim

1559ditch into the Daniels' Ditch with similar pipes connecting that Daniels' Ditch

1571with Spanish Creek, such that the canal between these two points could carry

1584water from the west rim ditch to Spanish Creek.

15935. The easement incorporated in this agreement was to last for five years

1606with an option for a five-year renewal, which option was exercised. At the end

1620of this 10-year period, SFWMD, successor to C&SFFCD, notified CLDD that because

1632its statutory authority had since changed, the easement could not be renewed and

1645that CLDD would have to seek the subject permit so as to be authorized to use

1661works and lands of the District.

16676. The requirements to be met by an applicant for a right-of-way permit

1680such as this one are set out in Rule 40E-6.301, Florida Administrative Code, and

1694SFWMD's permitting information manual, Vol. V, Criteria Manual for Use of Works

1706of the District, July, 1981, which is incorporated by reference in that rule.

1719In that connection, the permit at issue, if granted, would not cause an

1732interference with the "works" of the District, that is dikes, ditches, flood

1744control structures arid drainage structures because it would merely renew the

1755pre-existing authorized use. The permit will not be inconsistent with an

1766comprehensive water use plan developed by the District. Further, the permit

1777applicant owns or leases the land adjacent to the portion of the "works of the

1792District" involved herein that is the east, north and west rim ditches of Spoil

1806Area "M," the Daniels' Ditch and the pipes at either end of it coupled with the

1822water control structures at the southeast corner and southwest corners of Spoil

1834Area "M," which control water entering the south rim ditch.

18447. CLDD has a surface water management permit, issued in August, 1980,

1856which is a prerequisite to the granting of the subject right-of-way permit. It

1869remains in full force and effect. That surface water management permit

1880authorizes "operation of a water management system serving 3,642 acres of

1892agricultural lands by a network of canals and control structures, with a

1904perimeter dike and canal discharging into Cypress Creek." The "surface permit"

1915authorized the system of drainage and discharge in existence at the time of its

1929issuance, May 8, 1980. The system of drainage, at the day of the hearing,

1943consisted of the same basic water flow and discharge pattern that existed for

1956approximately 10 years, and this permit would allow that to be continued, thus,

1969there will not be any additional effect on environmentally sensitive lands

1980occasioned by an issuance of the subject right-of-way permit.

19898. The surface water management permit, by its terms, refers initially to

2001the operation of a water management system" . . . discharging into Cypress

2014Creek." The reference to "Cypress Creek" was an administrative error. The

2025express language on the face of the permit authorization incorporates by

2036reference the application, including all plans and specifications attached

2045thereto, as addressed by the staff report, and those materials, including the

2057staff report, are a part of the permit. The complete permit, including all

2070those documents incorporated by reference, makes it clear that the authorization

2081of the surface water management permit was that the system of drainage in

2094existence at the time of permit issuance (1980) was that which was being

2107approved, and that included discharge to Spanish Creek and not Cypress Creek.

2119Discharge of water to Cypress Creek as an alternative was never recommended or

2132authorized by that surface water management permit. This is clearly the intent

2144expressed in the permit in view of the language contained in a special condition

2158of that surface water management permit imposed by the SFWMD as a condition for

2172issuance which stated as follows:

2177Within 45 days of the issuance of this permit

2186the permittee shall submit for staff approval

2193a proposal and schedule for the elimination of

2201the adverse impacts being created by the

2208operation of the permittee's water management

2214system, which can be legally and physically

2221accomplished by the permittee. Adverse

2226impacts are considered herein to be reduced

2233flows to Spanish Creek and increased flows to

2241Cypress Creek.

2243Thus, it is obvious that the authorization of the surface water management

2255permit was designed to provide for discharge into Spanish Creek and to enhance

2268the flows to Spanish Creek pursuant to a required proposal which the permittee

2281submitted to SFWMD. Thus, the right-of-way permit applied for herein is

2292consistent with the valid surface water management permit held by the permit

2304applicant in this proceeding.

23089. Petitioners William H. and Patricia H. Mellor are co-owners of parcels

2320of property lying some distance south of Spoil Area "4" in the vicinity of the

2335Caloosahatchee River. This property does not abut the spoil area at any point.

2348Spanish Creek does cross their property several thousand feet south of the south

2361boundary of the spoil area. In the past, particularly in 1982, water flowing

2374from the south rim ditch of the spoil area through a break in the dike of that

2391south rim ditch, has flowed through a ditch known as Dry Creek in a generally

2406southerly direction under S.R. 78 and has washed out an access road constructed

2419by William Mellor which leads from Highway 78 to his property. He had this

2433washout repaired at his own expense in 1982. The washout was caused by water

2447from CLDD flowing into the south rim canal of Spoil Area "M," that is, the ditch

2463that traverses (and defines) the southerly boundary of the spoil area. Mr.

2475Mellor admitted, however, that SFWMD had at least partially plugged the opening

2487in the south rim ditch which had allowed flow down the Dry Creek ditch and wash

2503out his road. If closed water control structures are maintained at the

2515southwest and southeast corners of the spoil area ditches, then no water could

2528flow into the south rim canal and no such injury could again be caused.

254210. Petitioner's Jim English and Patricia Mellor are co-owners of a 45-

2554acre parcel of land located in the southwest corner of Spoil Area "M." The five

2569acres forming the extreme southwest corner of the spoil area do not belong to

2583these Petitioners, but are owned by one Lynwood Brown, who is not a party to

2598this proceeding. The English/Mellor property forms a part of the spoil area,

2610but does not adjoin or constitute any part of the spoil area which is sought to

2626be used by CLDD through the proposed right-of-way use permit (as clarified by

2639CLDD's stipulation). The south rim ditch, either part of, or adjoined by their

2652property, has been used for water storage in the past (they maintain illegally)


266611. Mr. Tom Pancoast has observed Spanish Creek frequently over a nine-

2678year period starting in approximately 1973. He has often used those waters

2690during that period for fishing. During the early years of his use and

2703observation of Spanish Creek, the water flowed out of Spanish Creek into the

2716Caloosahatchee River. Beginning in about 1976, the water appeared to be flowing

2728in the opposite direction, from the river into Spanish Creek. Contemporaneous

2739with this hydrologic change, the creek has become increasingly characterized by

2750siltation and hyacinth growth. Mr. William Mellor owns property along the

2761course of Spanish Creek. He has used the stream for recreational purposes,

2773picnicking where the stream traverses his property. In recent years there has

2785occurred a marked increase in the growth or profusion of aquatic plants of

2798unidentified types in the creek, reduced clarity and reduced flows or volumes of

2811water in the creek. Witness English has made a similar observation.

282212. Witness James English has a substantial degree of training by formal

2834education and experience in water management and drainage practices and methods,

2845particularly as they relate to citrus grove development and management in

2856southwest Florida. Mr. English has observed Spanish Creek regularly for most of

2868his life, including the region of its headwaters in the "Cow Prairie Cypress," a

2882remnant wetland cypress strand lying within the CLDD immediately north of Soil

2894Area "M." The chief adverse impact of the CLDD water management system is

2907reduced flow to Spanish Creek, especially its upper reaches since the advent of

2920the "Daniels' Ditch" as a drainage route and discharge point into lower Spanish

2933Creek. However, the only special condition on the issuance of the surface water

2946management permit approving CLDD's extant water management system was the

2956requirement that CLDD should submit a plan for eliminating that adverse effect,

2968which it did (as Petitioner English admits). Beyond the submission of such a

2981plan, no concrete action designed to restore historic flows to Spanish Creek has

2994yet begun, however. The restoration of historic flows, adequate in volume and

3006quality, to the entire creek system would require discharging water from CLDD's

3018system to the Cow Prairie Cypress area at the headwaters of the creek rather

3032than substantially further downstream at the present Daniels' Ditch site.

304213. The Petitioners' complaints (aside from the issue of adequacy of flows

3054in Spanish Creek), although meritorious, are, because of stipulations asserted

3064by CLDD during the course of this proceeding, now rendered moot. CLDD

3076stipulated that it only seeks a permit to use the west, north and eastern spoil

3091area ditches. It does not seek and stipulated that it will not use, at any

3106time, the south rim ditch and will maintain water control structures so to block

3120water from entering that ditch. This will alleviate the problem of potential

3132storage of water on Petitioners English and Patricia Mellor's property and the

3144erosion problem on Petitioners William and Patricia Mellor's property south of

3155the spoil area. It was thus established that the issuance of the right-of-way

3168permit will not cause the injuries these Petitioners have suffered in the past

3181because of use of the south rim ditch for water drainage and storage.


319714. The Division of Administrative Hearings has jurisdiction over the

3207parties to and the subject matter of this proceeding. Section 120.57(1),

3218Florida Statutes.

322015. Petitioners Patricia Mellor, William Mellor and James D. English have

3231standing to object to the Respondent CLDD's request for a permit for use of

3245District works and lands. The injuries alleged by Petitioners related to excess

3257storage of water on their land in the south rim ditch, the past and potential

3272future erosion of the access road with regard to Patricia and William Mellor's

3285property are injuries which a proceeding of this type is designed to address and

3299protect pursuant to Rule 40E-6.301 (1)(a) and (e), Florida Administrative Code.

3310Thus, the Petitioners were entitled to participate in this proceeding in an

3322attempt to prove those injuries in fact, which are relevant to this type of

3336proceeding and which they proved had occurred in the past. Evidence adduced by

3349the permit applicant, however, together with CLDD's stipulation, reveals that

3359indeed the south rim ditch will not be used and will be closed off so that water

3376from the CLDD drainage system will not enter that ditch and thus the feared

3390injuries cannot occur and have not been proven. Water will not reach the south

3404ditch so as to be stored there nor will it overflow into the Dry Creek ditch and

3421flood the Mellor's road.

342516. Rule 40E-6.301(1)(c), Florida Administrative Code, requires that the

3434proposed use not degrade the water quality of the receiving water body. The use

3448proposed here is merely a continuation of the use already existing an authorized

3461for approximately 10 years. In that regard, Rule 40E-6.301(2)(c), Florida

3471Administrative Code, requires that a surface water management permit be issued

3482before a right-of-way permit will be granted. The Respondent CLDD has

3493established that permit #36-00184-S was issued for the operation of the existing

3505citrus grove and CLDD's existing water management plan and Petitioners have not

3517disputed its existence. This 1980 permit clearly takes into consideration

3527problems alleged by the Petitioners here concerning water quality and volume in

3539Spanish Creek because it specifically requires, under the special conditions

3549section, that CLDD make a proposal within 45 days to ameliorate the problem of

3563reduced flows to Spanish Creek. Thus, that surface water management permitting

3574process addressed the very complaints raised by the Petitioners and thus

3585necessarily involved the decision that the discharge into Spanish Creek was

3596substantially the same one described in the current right-of-way permit

3606application and that it was appropriate, aside from the above special condition.

3618The right-of-way permit application is therefore consistent with its previously

3628granted surface water management permit.

363317. While the Petitioners have alleged harm to their substantial interests

3644by the alleged degradation of water and insufficiency of flows in Spanish Creek,

3657the evidence adduced fails to indicate that the discharge into Spanish Creek

3669contemplated in the instant permitting process is any different in character,

3680amount or deleterious effects than that authorized by the 1980 surface water

3692management permit and the previous easement permitting use of the ditches

3703involved This proceeding is designed simply to determine if the right-of-way

3714permit," continuing a preexisting unchanged use, should be issued. Thus, this

3725particular injury alleged is not of a type or nature which the instant

3738proceeding is designed to protect (as opposed to the original surface water

3750management permitting process), and the Petitioner's have the option of

3760instigating an enforcement action either by SFWMD, or by a court of competent

3773jurisdiction through its equity powers, if the condition under which the surface

3785water management permit was issued, that is the required reduction of adverse

3797effects on flows of Spanish Creek, is not complied with. Since the Petitioners

3810have not proved the issuance of this permit is casually, related to, or would

3824have any effect on this alleged injury, the "nexus" requirement for standing to

3837this extent has not been met. Agrico Chemical Company v. Department of

3849Environmental Regulation, 406 So.2d 478, 479 (Fla. 2d DCA 1981); see generally,

3861Suwannee River Area Council Boy Scouts of America v. Department of Community

3873Affairs, 384 So.2d 1369 (Fla. 1st DCA 1980). See, also, In the Matter of:

3887Petition for Formal Proceedings on Modification of Permit No. 36-00142-5, East

3898County Water Control District, 4 F.A.L.R. 2784-A, December 13, 1982.

390818. Although the Intervenor Lee County sufficiently alleged standing to

3918permit it to participate in opposition to the permit request of Respondent CLDD,

3931Lee County did not present any evidence probative of its alleged "injury-in-

3943fact" upon which standing was predicated in that it failed to show any concrete

3957evidence of harm to its water supply in the Caloosahatchee River.

396819. Section 373.085(1), Florida Statutes (1981), provides that the

3977Governing Board of the Water Management District has authority to prescribe:

3988[T]he manner in which local works provided by

3996other districts or by private persons shall

4003connect with and make use of the works of the

4013district, to issue permits therefor, and to

4020cancel the same for noncompliance with the

4027conditions thereof, or for other cause. It

4034shall be unlawful to connect with or make use

4043of the works of said district without consent

4051in writing from its governing board, and said

4059board shall have authority to prevent, or if

4067done, to estop or terminate the same.

407420. The rules which guide SFWMD in implementing this grant of authority

4086are found at Chapter 40E-6, Florida Administrative Code. The purpose of this

4098chapter is to establish a permitting system to "insure that uses are compatible

4111with construction, operation, and maintenance of the works of the District."

4122Rule 40E-6.011, Florida Administrative Code.

412721. The "conditions for issuance of permits" under this chapter, at Rule

413940E-6.301, speak generally to whether the uses to be made of the works of the

4154District are appropriate. The rule itself provides in pertinent part:

4164(1) In order to obtain a permit under this

4173Chapter, an applicant must give reasonable

4179assurances that the proposed use of works of

4187the District:

4189(a) Will not interfere with the construction,

4196alteration, operation, or maintenance of the

4202works of the District.

4206(b) Is not inconsistent with the overall

4213objectives of the comprehensive water use plan

4220developed by the District.

4224(c) Does not degrade the quality of the

4232receiving body and meets the standards of the

4240Florida Department of Environmental Regulation

4245for the receiving body. The board may waive

4253the strict enforcement of this provision.

4259(d) Meets the general and specific

4265conditions and criteria in the District's

"4271Criteria Manual for Use of Works of the

4279District - June, 1981."

4283(2) The following conditions and criteria

4289shall also be met:

4293(b) The applicant must own or lease the land

4302adjacent to or served by the portion of the

4311works of the District involved.

4316(c) If the use involves the construction of

4324facilities for a non-exempt water withdrawal

4330or surface water discharge the applicant must

4337apply for and obtain a water use or surface

4346water management permit before the right-of-

4352way occupancy permit will be granted.

435822. CLDD presented competent, substantial evidence and testimony in the

4368form of the testimony of its expert witness and professional engineers Ken

4380Harris and Tom Fratz, the SFWMD permit administrator, plus documentary evidence,

4391demonstrating that it has complied with the above rules. The Petitioners

4402presented no evidence that CLDD had not met the conditions imposed by the above

4416rules, aside from their contention and evidence concerning CLDD's surface water

4427management permit as being insufficient to satisfy Rule 40E-6.3 1(2)(c) CLDD has

4439met the precondition in that it has been issued the surface water management

4452permit and has therefore met the literal requirement that the applicant have a

4465surface water management permit before the right-of-way occupancy permit will be

4476granted. Petitioners contend, however, that it must also be shown that the

4488surface water management permit when issued contemplated the actual use of works

4500of the District (discharge to Spanish Creek), now sought to be permitted. In

4513that regard, when the surface water management permit was issued in 1980, the

4526drainage system in existence then, pursuant to the easement agreement and with

4538which that permit was concerned, was in all material respects identical to that

4551which exists now for which the subject permit is sought. As found in the above

4566Findings of Fact, the various documents, including the staff report issued

4577during the consideration of the application for the surface water management

4588permit and incorporated in the permit, render it obvious that the SFWMD's 1980

4601action issuing the surface water management permit also approved the then and

4613now existing CLDD off-site discharges from the spoil area rim ditch into Spanish


462723. Since 1972, the applicant has properly discharged water from the

4638southwest corner of the spoil area into Spanish Creek (and from the southeast

4651corner of the spoil area into Millers' Gully). When the SFWMD exerted surface

4664water management jurisdiction over CLDD in 1980, and issued that permit,

4675necessarily authorizing the already existing discharges, the permit clearly took

4685into account the problems alleged by the Petitioners herein by stating under its

"4698special conditions" section that CLDD should make a proposal, within a time

4710certain, to ameliorate reduced flows to Spanish Creek. Since the surface water

4722management permit addresses the very complaints raised by these Petitioners, it

4733is logical to conclude that the discharge it authorized was substantially

4744similar to that described in the current application. The instant permit

4755application, thus, is consistent with and does not alter or vitiate the

4767previously issued surface water management permit. It merely takes the place of

4779the outdated 1972 agreement. If the CLDD fails to comply with either the

4792surface water management permit or its right-of-way permit, including the

"4802special condition," it will be subject to appropriate enforcement action. In

4813short, the Respondent CLDD has demonstrated by a preponderance of the evidence,

4825reasonable assurances that the above requirements of Rules 40E-6.301(1)(a), (b),

4835(c) and (d); and 40E-6.301(-2)(b) and (c), Florida Administrative Code, have

4846been satisfied. Petitioners have not presented sufficient competent,

4854substantial evidence to refute the showing by the permit applicant that

4865reasonable assurances of compliance with the above rules have been provided.

4876Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778, 788 (Fla.

48881st DCA 1981).


4892Having considered the foregoing Findings of Fact, Conclusions of Law, the

4903evidence in the record and the candor and demeanor of the witnesses, it is,



4919That the South Florida Water Management District grant the County Line

4930Drainage District's application for a permit for utilization of works and lands

4942of the District. Subject to the following special condition:

49511. Issuance of this right-of-way permit does

4958not relieve the Respondent CLDD from the

4965responsibility of complying with special

4970condition number 1 of the surface water

4977management permit number 36-00184-S.

49812. Respondent CLDD shall, within 30 days of

4989date of permitting, submit a design to the

4997satisfaction of the SFWMD staff which will

5004prevent the ability of CLDD to discharge to

5012the southern rim ditch, described above.

5018DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida.



5034Hearing Officer

5036Division of Administrative Hearings

5040The Oakland Building

50432009 Apalachee Parkway

5046Tallahassee, Florida 32301

5049(904) 488-9675

5051Filed with the Clerk of the

5057Division of Administrative Hearings

5061this 29th day of September, 1983.


50681/ Questions involving title to the land encompassing the south rim ditch and

5081the rights appurtenant thereto, including storage of water on that land, are

5093properly matters to be entertained by a Circuit Court with plenary jurisdiction.


5107William H. and

5110Patricia H. Mellor

51135892 Riverside Lane

5116Fort Myers, Florida 33907

5120James D. English

5123Route 2, Box 86

5127Alva, Florida 33920

5130Marilyn Wnek Miller, Esquire

5134John Tileston, Esquire

5137Post Office Box 398

5141Fort Myers, Florida 33902-0398

5145Anne Longman, Esquire

5148Terry L. Lewis, Esquire

5152Post Office Box 1876

5156Tallahassee, Florida 32301

5159Irene Kennedy Quincey, Esquire

5163Post Office Box "V"

5167West Palm Beach, Florida 33402

5172John R. Maloy, Executive Director

5177South Florida Water Management District

5182Post Office Drawer "V"

5186West Palm Beach, Florida 33402

Select the PDF icon to view the document.
Date: 06/21/1991
Proceedings: Final Order filed.
Date: 11/17/1983
Proceedings: Agency Final Order
Date: 11/17/1983
Proceedings: Recommended Order
Date: 09/29/1983
Proceedings: Recommended Order sent out. CASE CLOSED.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Tallahassee, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (2):

Related Florida Rule(s) (1):