90-001734 South Florida Water Management District vs. Canoe Creek Property Owners Association, Inc., And Dean Development Company, Inc. Status: Closed Recommended Order on Wednesday, July 31, 1991.

Summary: Water management district could modify permit to require downstream landowners to handle additional water flows which had been overlooked when permit first granted

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1734

)

)

CANOE CREEK PROPERTY OWNERS )

ASSOCIATION, INC., and DEAN )

DEVELOPMENT COMPANY, INC., )

)

Respondents, )

)

and )

)

WESTWOOD COUNTRY ESTATES, INC., )

)

Intervenor. )

___________________________________)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer

designated by the Division of Administrative Hearings, on August 29 - 31, 1990,

in Stuart, Florida.

APPEARANCES

For Petitioner: John J. Fumero, Esquire

3301 Gun Club Road

Post Office Box 24680

West Palm Beach, Florida 33416

For Respondent: Manuel Farach, Esquire

Post Office Box 778

Stuart, Florida 3499-50778

and

Don Mooers

Qualified Representative

Post Office Box 1147

Palm City, Florida 34990

For Intervenor: Terry E. Lewis, Esquire

Robert P. Diffenderfer, Esquire

Messer, Vickers, Caparello,

French, Madsen & Lewis, P.A.

2000 Palm Beach Lakes Boulevard

Suite 900

West Palm Beach, Florida 33409

PRELIMINARY STATEMENT

The South Florida Water Management District (District) filed this

proceeding against Canoe Creek Property Owners Association, Inc., and its

predecessor in title, Dean Development Company, Inc., to require modifications

in the surface water management system of Canoe Creek. Dean Development failed

to participate in the case. There are disputes between the Property Owners

Association and the Canoe Creek developer over whether the system has been

turned over to the property owners. Those disputes must be resolved elsewhere.

Canoe Creek is a mature 86.5 acre residential subdivision. It is immediately

east of and adjacent to Westwood Country Estates, an 82.1 acre residential

development which is in the early stages of development.

This action is the second of two related proceedings initiated by the

District. The prior matter began in August 1988 when the District issued a

Notice Of Violation to Westwood Country Estates, Inc. (Westwood), claiming it

had made an unauthorized discharge of storm water which had an adverse impact on

Bessey Creek. Westwood's unauthorized discharge occurred after a storm event,

when the berm along Westwood's southern boundary failed, and surface water began

to flow south from that breach into Bessey Creek.

As part of the resolution of the Notice Of Violation proceeding, Westwood

filed, on or about October 14, 1988, an application with the District to modify

its surface water management system. Westwood's consulting engineer had

determined, when preparing the permit modification application, that an

additional 52 acres of land immediately to the west of Westwood drained onto

Westwood, and that the water from that land needed to be incorporated into the

Westwood surface water management system. At Westwood's eastern boundary is a

north/south berm which separates it from Canoe Creek; there is a weir structure

at about the mid-point of the berm, which has been permitted by the District.

Westwood's permitted surface water management system discharges easterly through

the weir into the Canoe Creek surface water management system and ultimately

into Bessey Creek.

The District's staff reviewed the application and issued a staff report

proposing to approve modification of the Westwood permit as proposed. During

the period available to affected persons to challenge the District's proposed

action, the Canoe Creek Property Owners Association, Inc., requested a formal

hearing on the Westwood permit modification application. That proceeding was

heard in Stuart, Florida, on August 1-4, 1989. The Hearing Officer recommended

that Westwood's permit modification be granted, because it was consistent with

the District's rules and criteria, and this Recommended Order was adopted by the

District's Governing Board in January 1990. That Final Order of the District

was affirmed by the Fourth District Court of Appeal on May 29, 1991. Canoe

Creek Property Owners Association v. Westwood Country Estates and South Florida

Water Management District, Case 90-0513, ____ So.2d ____.

FINDINGS OF FACT

I. General.

1. The Westwood permit modification contemplated a series of improvements,

not only in its own system, but also to Canoe Creek's surface water management

system. These improvements were designed to take into account the previously

unknown surface water flows from the 56 acres to the west of Westwood. A

special condition of the Westwood permit modification was that Canoe Creek's

permit and surface water management system be modified to incorporate changes to

accept these additional water flows.

2. The District issued its Administrative Complaint and Order/Notice Of

Intended Modification of the Canoe Creek permit, which initiated this case, on

February 2, 1990, in an effort to force the incorporation of specific

improvements of Canoe Creek's surface water management system to fully integrate

it into the area-wide system. Although the procedural contexts of the two cases

are different, from an engineering point of view, the same issues are raised in

this proceeding by the District to require Canoe Creek to modify its surface

water management system as were raised in the earlier proceeding in which

Westwood sought, and Canoe Creek opposed, modification of the Westwood surface

water management permit so that Westwood's system would accommodate off-site

flows. The seven specific modifications proposed for Canoe Creek are:

Station 0 (southern entrance road): Replace the existing 24 inch diameter

CMP culvert with two 30 inch diameter CMP culverts.

Station 7 (main entrance road): Replace the existing 24 inch X 34 inch CMP

Arch culvert with two 24 inch X 35 inch CMP Arch culverts. If the existing 24

inch X 34 inch Arch culvert is in good condition, only one 24 inch X 35 inch CMP

Arch culvert will be added at this location.

Station 13 (outfall structure): Verify that the existing structure was built

as designed and then increase the weir length to 6.1 feet at crest elevation

10.25 feet NGVD. The top of this weir structure should also be increased to

elevation 20.0 feet NGVD.

Station 13 to 14 (east-west swale): Regrade the swale bottom to remove

all high point greater than elevation 8.25 feet NGVD.

Station 14 (internal road): Replace existing 24 inch X 34 inch CMP Arch

culvert with two 24 inch X 35 inch CMP Arch culverts and lower the invert

elevation to 8.25 feet NGVD. If the existing 24 inch X 34 inch CMP Arch culvert

is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added

at this location.

Station 15 to 19 (east-west swale): Regrade swale bottom starting at

elevation 8.25 feet NGVD at station 15 and ending with elevation 8.5 feet

NGVD at station 19.

Station 19 (weir structure): Increase the existing weir length to the

permitted weir length of 5.0 feet at the existing weir crest elevation 10.14

feet NGVD.

II. The Westwood Permit.

A. Historical Background.

3. As noted above, Westwood is an 82.1 acre residential development. It

is located in northern Martin County, west of Stuart, Florida, and east of the

Florida Turnpike. It is immediately west of Canoe Creek, an older 86.5 acre

subdivision of single family homes. Both projects share a common property

boundary, and both historically drain into Bessey Creek. Bessey Creek in turn

drains into Canal 23 (C-23) which is a work of the District. Canal C-23 is the

dominant drainage feature in the area. Development throughout the Bessey Creek

watershed has altered historic sheet flow, and directed that flow to point

discharges in the various developments.

4. The District issued its Construction and Operation Permit 43-00155-S to

Mr. Gordon Nelson on February 14, 1980, for the construction of the residential

development which became Westwood. Westwood's surface water management system

used grassed swales, catch basins, storm sewers, and natural wetland areas to

contain surface waters, which were then directed through one 4-foot weir at

elevation 10.75 feet NGVD with a V-notch bleeder set at 9.75 feet NGVD, draining

into a 25-foot wide drainage easement and ditch which was part of the Canoe

Creek surface water management system. The original permit was reissued to Tall

Pines Finance Corporation on July 8, 1982, and included a system of catch

basins, one 24 inch by 440 lineal foot CMP equalizing culvert, one 5.33 foot

wide weir at elevation 12.2 feet NGVD, one 25 foot wide drainage ditch, and one

42 inch by 40 lineal foot CMP culvert and one 29 inch by 40 lineal foot CMP

culvert.

5. The permit was modified on April 14, 1983, to permit Westwood to

discharge through a narrower 4-foot wide weir with a crest elevation of 12.1

feet NGVD and two 6-inch diameter circular PVC bleeders, with inverts at

elevation 11.5 feet NGVD. Final discharge remained into Canal C-23 via Bessey

Creek and the Canoe Creek surface water management system.

6. The Westwood permit was modified for a third time on June 9, 1983, to

include about 4.15 acres of off-site flows coming into the Westwood surface

water management system.

7. Westwood's fourth application to modify its surface water management

permit was filed on October 14, 1988, in response to a Notice of Violation which

the District had served on it on August 26, 1988. The unauthorized discharge of

stormwater from the southern boundary of Westwood occurred after a heavy storm

and resulted in adverse impacts, i.e., shoaling in Bessey Creek. This

unauthorized discharge occurred when the surface water management improvements

on the Westwood site were only partially complete. The berm around the property

perimeter then was about five feet high, was unsodded and unstable.

B. Operation.

8. The breach in the berm on Westwood's southern perimeter was partially

caused because Westwood was receiving surface waters from a 56 acre parcel which

adjoins Westwood on its western boundary, and that sheet flow had not been

included in the original calculations for Westwood's own surface water

management system or that of Canoe Creek. The other cause was the incorrect

elevation of the control structure on the Westwood/Canoe Creek boundary

described in the next finding. Water built up on that 56 acre parcel. It first

caused a separate breach in the western perimeter berm of Westwood, and the

additional volume of water entering Westwood overloaded Westwood's system, and

in turn caused the breach on the south of Westwood's property, resulting in the

unauthorized discharge into Bessey Creek.

9. After investigation, Westwood's consulting engineer also found that the

outfall structure for the Westwood system had been installed too high, and

therefore was not operating correctly. One of the internal pipes had been

constructed three tenths of one foot too low, which permitted water to flow in

the opposite direction than it had been designed for, which impeded the

operation of the system and caused water to back up on the Westwood property.

That construction deficiency in the Westwood system has been corrected.

C. Relation with Canoe Creek Subdivision.

10. The available topographic information shows that, in general, the

historic natural flow of water over the entire area in issue moves in an

easterly and southeasterly direction. This has been recognized to some extent

in the surface water management permits issued to both the Canoe Creek and

Westwood projects, for their surface water management systems were permitted as

integrated systems. The Westwood permit in effect since 1980 authorizes a peak

discharge of 21 cubic feet of water per second (CFS) through the weir structure

at the subdivisions' common boundary, which is consistent with criteria

applicable to the entire C-23 basin. The system is a cascading one, from the 56

acre parcel, through Westwood to Canoe Creek. Water ultimately flows through

the Canoe Creek surface water management system down a swale into the Canoe

Creek Lake, and from there easterly to a ditch along side West Murphy Road, and

then flows south into Bessey Creek.

11. A perpetual easement for drainage and utility purposes had been

granted by the developer of Canoe Creek Subdivision, Dean Development, to

Westwood's predecessor-in-title on December 17, 1979. The easement covers the

20-foot by a 485-foot swale from the Westwood discharge structure at Canoe

Creek's western boundary extending easterly into the Canoe Creek Lake.

D. Relationship with Crane Creek and Bessey Creek.

12. There are other streams in the area which also drain into Canal C-23,

such as Crane Creek which is to the south of Westwood. The District has never

authorized discharges of water from the Westwood or Canoe Creek areas south into

Crane Creek.

E. Proposed modification.

13. Westwood's application to modify its own permit was largely based on

the backwater analysis of Westwood's consulting engineer, which calculates the

effect of maximum design loadings or flows on the system. That analysis showed

that improvements were required both to the Westwood and Canoe Creek surface

water management systems to take into account the increased volume of water

which was flowing into the Westwood system from the 56 acres beyond the Westwood

property. His suggested modifications include raising by six inches the catch

basin at the western boundary of Westwood, which intercepts the flow from the

tributary 56 acres, in order to impound more water off-site. The second

modification was that the crest of the outfall structure from the Westwood

subdivision into Canoe Creek be lowered from 12.1 feet NGVD to 11.8 feet NGVD,

that the bleeders be lowered from 11.5 feet NGVD to 11.3 feet NGVD and that four

(4) bleeders be used. This would alleviate one of the problems that contributed

to the breach in the south perimeter berm. The peak discharge from the 56 acres

to Westwood during a design storm event would be 3.4 cubic feet per second.

14. The Canoe Creek system also requires modifications. These include the

installation of additional culverts under the subdivision's entrance road and

West Murphy road, regrading the swales running from the Canoe Creek Lake to

lower their cross-section and improve their water carrying capacity, and

widening of the weir to 6.1 feet. This would allow the integrated Westwood and

Canoe Creek systems a peak discharge rate of 21.3 CFS each during a 10-year/72-

hour design storm event. The peak discharge from the entire drainage area of

223.7 acres is about 34 CFS, not the combined peak dicharges from both systems

of 42.6 CFS. (See, T. 680). This occurs because the Canoe Creek system will

not reach its peak discharge at the same time the Westwood system reaches its

own peak. The Canoe Creek system reaches its peak well before the 21 CFS peak

flow from the Westwood system arrives. The entire system will retain a portion

of the design storm rainfall and runoff. This is due to predischarge detention

on each site, and the design of the swales and lakes on both properties.

III. Canoe Creek Permit.

A. History of the Permit.

15. The District construction and operation permit for the Canoe Creek

Subdivision, 43-00135-S was issued for phase 1 (48.3 acres) on June 7, 1979.

Its discharge was to occur through two 3.5-foot wide weirs with crest elevations

of 10.15 feet NGVD, and V-notches with invert elevations at 9.0 feet NGVD. The

ultimate discharge was to be into Canal 23, via Bessey Creek and a drainage

ditch. Special Condition 4 of the permit is that operation of the Canoe Creek

surface water management system "will be the responsibility of Canoe Creek

Homeowner's Association." The Canoe Creek permit was modified on August 6,

1981, to include another 37.3 acres, which was phase 2 of the Canoe Creek

Subdivision. The control structure was modified to be one 5-foot wide weir with

a crest elevation of 10.25 feet NGVD and one 40 degree V-notch with an invert

elevation at 9.0 feet NGVD. The discharge route remained the same.

16. The District issued a Notice of Deficiency to Canoe Creek on March 3,

1989, because the District's field staff had found that the control structures,

as well as the conveyance system, were not constructed in accordance with the

surface water management permit specifications. The swales had been allowed to

deteriorate and become obstructed. The weirs were only 3.8 feet wide and had

52-degree V-notches. They had been permitted as a 5.0 feet wide weir with a 40-

degree V-notch. The problem with the width of the control structures was easily

corrected, however.

B. Hydrological relationship with Westwood subdivision.

17. The Canoe Creek developer, Dean Development Company/Arthur Quinn,

granted an easement to Westwood to drain its surface water into Canoe Creek.

See, Finding 11, above. Canoe Creek argues that the parties intended to limit

the easement for drainage from Westwood into Canoe Creek for a nine acre wetland

on the western boundary of Canoe Creek. The more reasonable interpretation of

the easement is that the parties meant to recognize and allow for the historic

water flow in the area. The historic sheetwater flow runs from the 56 acres to

the west of Westwood, across Westwood, and finally across the land which is now

the Canoe Creek subdivision before it flows into Bessey Creek. The original

surface water management permit issued by the District for the Westwood property

on February 14, 1980, and all subsequent amendments to it, have authorized

Westwood to discharge up to 21 CFS of water into Canoe Creek through a control

structure located on Westwood's eastern boundary. The most recent amendment to

the Westwood permit has the same peak discharge into the Canoe Creek system of

21 CFS during a 10-year/72 hour design storm event.

VI. Historic Basin Flows.

A. Boundary and Direction of Historic Surface Flows in the

Canoe Creek/Westwood Basin.

18. A determination of the historic surface water flows in the basin is

important under the District's criteria for granting or modifying surface water

permits, which is known as the District's "Basis of Review." That document is

part of Vol. IV, the District's Permit Information Manual and is incorporated by

reference in District rules. The District generally intends to permit surface

water flows which approximate the runoff from a parcel in its undisturbed or

natural state. It is not necessary for an applicant to attempt to determine

historic water flows where an allowable discharge rate has been developed by the

U.S. Army Corps of Engineers for a basin. The rate determined for the C-23

basin is 31.5 cubic feet of water per second per square mile. This maximum

allowable discharge rate applies to all projects in the C-23 basin. Basis of

Review, Appendix 2, page B-30. This approximates the historic rate of surface

water flow over the lands which comprise the C-23 basin during design storm

conditions.

19. In an effort to determine what caused the unauthorized discharge from

Westwood's southern boundary into Bessey Creek in August 1988, the consulting

engineer retained by Westwood, Mr. Searcy, walked the site. Based on his actual

inspection, he found that a tributary area of 56 acres immediately west of

Westwood contribute sheet flows to the Westwood subdivision. In general, the

land west of Westwood has an elevation of about 13 feet. Elevation declines

across Westwood and Canoe Creek, where at the eastern boundard of Canoe Ceek the

elevation is about 7 feet. Essentially the elevation tilts from west to east.

Mr. Searcy actually prepared a topographical map from survey data as an aid to

analysis of the site surface water characteristics. This site specific data is

persuasive. It supports Mr. Searcy's determination that sheet flow from the 56

acres to the west of Westwood did not flow south into Crane Creek or into some

other tributary of Bessey Creek. Topographical data shows a relatively high

area at the south end of the Westwood property which would prohibit flows to the

south except for a very small area. The 56 acre parcel to the west is

essentially a wetland, and when it overflows the discharge would go through the

southern half of what now is the Westwood subdivision, flow through a series of

wetlands within Westwood and ultimately to the east into the Canoe Creek

subdivision. Review of aerial photography and USGS Quad sheets are consistent

with Mr. Searcy's analysis.

20. The mere existence of the easement across Canoe Creek's land is not a

highly persuasive indicator of historic waterflows, because developers generally

tend to force sheet water from the center of developments to their perimeters

and discharge the flow from point sources. Mr. Mathers' testimony for Canoe

Creek was less persuasive than that of Mr. Searcy because Mr. Searcy's testimony

was, to a large extent, based on the topographic map of the area which he had

prepared. In contrast, Mr. Mathers' testimony was based on his interpretation

of aerial photographs. Inferences from those photos are necessarily more

general and less reliable then information developed from on-site measurement.

Mr. Mathers relied, to some extent, on older topographic or coastal geodetic

maps, which are not always accurate when they are used to make determinations

about small acreages in large map areas. Mr. Mathers also had not been on the

site during flood conditions.

21. As noted in Finding of Fact 18, above, The U.S. Army Corps of

Engineers has computed the historic flow volume of water flowing across land in

the Canal 23 basin. According to District rules, when evaluating whether a

system is capable of handling a volume of run-off, these Corps of Engineers'

calculations must be used, rather than attempting to assess and compare

predevelopment versus postdevelopment run-off. Permit Information Manual, Vol.

IV, Part B, Appendix 2, at page B-30 and Part C (IX) Design Drainage Basins, at

page C-IX-1. The modifications in the surface water management systems proposed

for Westwood and Canoe Creek would satisfy the C-23 basin criteria.

V. Whether modification should be required.

22. This question has two aspects: what are the deficiencies of the

current situation, and what are the benefits of the changes proposed for the

current system. These are discussed in subheadings A and B below.

A. Current system's inconsistency with objectives of the

District.

23. Without surface water management system modifications, the Canoe Creek

system does not provide the required level of flood protection for the area, and

therefore can be characterized as constituting a danger to the public health or

safety. The objectives of the District are found in Chapter 373, Florida

Statutes, and Chapter 40E-4, Florida Administrative Code. The major objective

of the District is to prevent damage from flooding. If a project meets the

District's permitting criteria it is consistent with the objectives of the

District. If a project does not comply with the permitting criteria, it is

presumed to be inconsistent with the objectives of the District.

1. Lack of flood protection and drainage, Rule 40E-

4.301(1)(a).

24. The backwater analysis of the Canoe Creek surface water system shows

that it has insufficient capacity to convey surface water out of the system

during design storm conditions. This creates a likehood that surface waters

originating in Westwood and the 56 tributary acres to the west will cause

flooding during heavy rains, such as rains which approximate the 10-year/72-hour

design storm events. Inadequate flooding protection of the system is a

potential nuisance.

2. Ineffective operation and maintenance, Rule 40E-

4.301(1)(f).

25. The Canoe Creek surface water management system has not been

maintained as it was originally permitted. It is not uncommon in residential

subdivisions for roadside swales to become filled in or obstructed by a driveway

construction. The conveyance swales downstream of the Canoe Creek lake's

control structure have become filled with a height of material so that the swale

is now higher than the control structural itself, which prevents the structure

from functioning properly. Though a homeowner did testify the subdivision had

recently caused the excavation of some of the material in the swale so that the

control structure would be able to function, there is insufficient evidence that

the work done restored the swale to its original permit conditions. Properly

graded swales are necessary for the system to function as designed.

3. Adverse effects on public health and safety, Rule 40E-

4.301(1)(g).

26. The current Canoe Creek surface water management system does not meet

applicable District criteria for design storm events, which means it constitutes

a flood hazard, and therefore a threat to public health and safety.

4. Inconsistency with state water policy, Rule 40E-

4.301(1)(h).

27. The failure to meet District design criteria for flood control and

drainage also means that the current Canoe Creek system is not consistent with

state water policy or applicable basin criteria.

5. Inconsistency with applicable basin criteria, Rule 40E-

4.301(1)(j).

28. The current Canoe Creek system does not meet applicable basin criteria

as shown by the Searcy backwater analysis, but if it is modified as proposed,

the system will meet those criteria.

B. Facts which show that the modifications proposed will be

consistent with District objectives.

29. If modified as proposed, the backwater analysis performed by Mr.

Searcy on the modified system, flood routings, hydrographs, and other evidence

provide reasonable assurances that the modified Canoe Creek system will meet the

criteria found in the District's Basis of Review for Surface Water Management

Permit Applications.

1. Flood protection and drainage, Rule 40E-4.301(1)(a).

30. If modified as proposed, the combined Westwood/Canoe Creek surface

water management system will provide adequate flood protection and drainage, as

shown by the backwater analysis.

2. Absence of adverse water quality and quantity impacts on

receiving waters and adjacent lands, Rule 40E-4.301(1)(b).

31. If modified, the Westwood surface water management system and Canoe

Creek system will be able to handle their own waters and those from the 56 acre

tributary area. Postdevelopment discharge will not exceed predevelopment

discharges when measured by applicable C-23 basin criteria of 31.5 CFS per

square mile. Water quality treatment is provided by the volume of water

detained in the lakes and swales over time and by the incorporation of "best

management practices" in the system, including the use of swales and wetlands as

part of the treatment system. The increased volumes of water the system will

handle, and the marginally increased velocity which comes with the increased

water flowing through the system, will not affect water quality. Water quality

is assured through the system's detention and storage requirements. Elevations

of the control structure are unaltered, so there should be little, if any,

increases in water velocity. Detention and storage also is accomplished through

the control elevations of the structures in the system, which are not being

changed in Canoe Creek.

3. Absence of adverse impacts on surface and ground water

levels and flows, Rule 40E-4.301(1)(d).

32. No control elevations within the Canoe Creek surface water management

system will be changed, although the weir will be widened. There will be no

impact on groundwater levels and flows. Even when regraded, Canoe Creek's

existing swales will still be above the seasonal high ground water table. There

would be no interchange of ground water with water detained in the swales above

ground.

4. Absence adverse environmental impacts, Rule 40E-

4.301(1)(e).

33. No modifications are proposed in the wetlands (lakes) on Canoe Creek's

property, and no control elevations are being changed. There should be no

adverse environmental impacts as measured by District criteria.

5. Effective operation and maintenance, Rule 40E-

4.301(1)(f).

34. While the existing system has not been effectively maintained, nothing

about the proposed modifications will impose any additional burden on Canoe

Creek in creating and carrying out an effective maintenance program once the

required changes are made.

6. Absence of adverse effects on public health and safety,

Rule 40E-4.301(1)(g).

35. Better flood protection and drainage will enhance public health and

safety. There will be no impact on potable water supplies as there is no

persuasive evidence that water tables in a cone of depression are being affected

or altered. District criteria for separation will not be violated, for there is

no wet detention system currently permitted in the Canoe Creek system, and none

would be created. The testimony of Mr. Unsell in this regard was persuasive

(Tr. 232, 305-06, 328). None of the excavation from the regrading of the swales

on Canoe Creek's property would intrude into a seasonal high water table of

groundwater, or cause a mixing of ground water with surface waters being

retained or directed in the system. Since there is no wet detention, the

requirement of Section 3.2.2.4 of the Basis of Review, that wet detention areas

be separated from public water supply wells by 300 feet, will not be violated.

7. Consistency with state water policy, Rule 40E-

4.301(1)(h).

36. This factor is not implicated in the proposed modifications, for

nothing about the proposed modifications of the Canoe Creek surface water

management permit would be inconsistent with state water policy.

8. Meets applicable basin criteria, Rule 40E-4.301(1)(j).

37. The testimony of District staff, and of the expert for Westwood are

persuasive that the drainage criteria for the Canal 23 basin are satisfied by

the proposed modifications.

9. Will not harm district water resources or interfere with

the legal rights of others as defined in Rule 17-40.07, Rule

40E-4.301(1)(k).

38. The modifications will result in no harm to water resources of the

District. There will be no interference with legal rights of others as defined

in Rule 17-40.07, Florida Administrative Code, because that rule of the

Department of Environmental Regulation has been repealed. See, Rule 17-40.404,

Florida Administrative Code. In addition, the issue of the effect of the

modification on Canoe Creek residents has essentially been raised and decided

adversely to Canoe Creek in the Westwood permit application litigation, which

was recently affirmed by the Fourth District Court of Appeal.

10. The modification is not against public policy, Rule 40E-

4.301(1)(l).

39. The foregoing findings show that the proposed modifications meet the

standards found in the District Basis Of Review and Rule 40E-4, Florida

Administrative Code. They are therefore consistent with public policy.

11. Will meet the general and specific criteria in the Basis

Of Review, Rule 40E-4.301(1)(m).

40. The engineering data and analysis of Mr. Searcy and the testimony the

District reviewers are persuasive that the proposed modifications provide

reasonable assurances that the general and specific criteria found in the

District's Basis Of Review will be satisfied. The modifications are consistent

with applicable flood protection, drainage, and water quality criteria.

12. Isolated wetlands, Rule 40E-40.301(1)(n).

41. The hydrologic function of existing wetlands on both the Canoe Creek

and Westwood property will be preserved if the proposed modifications are made.

They will have no impact on other wetlands.

13. Criteria for above ground impoundments, Rule 40E-

4.301(1)(o).

42. The proposed modifications will meet all design criteria found in the

District's Basis Of Review. This is shown by the flood routings and backwater

analysis of the existing and proposed systems. This issue also has already been

litigated by Canoe Creek in the Westwood permit application case, which was

decided adversely to its position there, and the final order in that case was

affirmed by the Fourth District Court Appeal.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has jurisdiction over this

matter. Section 120.57(1), Florida Statutes, and Rule 40E-1.521(4), Florida

Administrative Code.

44. The integrated surface water management system which will result from

the proposed modifications comply with District basin criteria. An area of

about 56 acres to the west of Westwood contributes surface water flows to the

Westwood's surface water flow, and historically has done so. These waters

historically then flow east and southeast through the land which now makes up

the Canoe Creek Subdivision. There is no reason to require the 56 acres or

Westwood to retain their historic sheet water flows on site. As a downstream

property owner, Canoe Creek has the obligation to continue to receive and to

convey those surface water flows. See, e.g. Stoer v. Ocala Mfg., Ice & Packing

Co., 24 So.2d 579 (Fla. 1946). The evidence is persuasive that the current

Canoe Creek permit was based upon incomplete information about the total area

contributing surface water across the Westwood and Canoe Creek lands. It is

appropriate to modify the Canoe Creek permits to accommodate those additional

historic flows. Under Section 373.429, Florida Statutes, the District may

modify a surface water management permit if it determines that an existing

permit has become a danger to the public health and safety or is "inconsistent

with the objectives of the District." The District implements this statutory

authority through Rule 40E-1.609, and it has the means to modify a permit's

terms when such modification is necessary to protect the public, prevent a

public or private nuisance, or when an existing permit is inconsistent with the

objectives of the District. Rule 40E-1.609(2), Florida Administrative Code.

The contribution of the off-site 56 acre parcel to the combined Westwood/Canoe

Creek system was not only proven here, but was established during earlier

litigation over the modification of Westwood's own permit. Even without giving

any res judicata or collateral estoppel effect to that prior determination, the

evidence in this case leads to the same conclusion. The proposed modifications

meet the criteria set in Chapter 40E-40.301, Florida Administrative Code, and

the District's Basis Of Review, which is incorporated into the District's rules.

See, Rule 40E-4.091. The current Canoe Creek surface water management system is

not adequate, but the proposed improvements will provide the flood protection

necessary and will meet the drainage criteria found in the District's Basis Of

Review for the C-23 basin. The flows are historic surfacewater flows, so the

modification does not violate the principle articulated in New Homes of

Pensacola, Inc. v. Mayne, 169 So.2d 345 (Fla. 1st DCA 1964), that the owner of

lower land cannot be required to accept increased surface flows resulting from

acts of man on higher land.

The C-23 formula.

45. In a basin where a basin formula has been established, the method the

District uses to determine whether postdevelopment runoff will exceed

predevelopment runoff is to apply the basin formula. "The allowable discharge

for District canals is based on the formulas, factors and curves shown in

Appendix 2 of the Basis of Review document." Basis of Review, page C-IX-1 at

IX. The formula is uniformly used for all property within the basin. It avoids

attempts to estimate pre-development and postdevelopment historic flows. Those

flows are extremely difficult to determine for each unique parcel of property

because development of other parcels has had an affect on flows observed today.

The basin discharge formula does approximate historic flows in the basin as a

whole. Application of the formula here is consistent with the past District

practice, which is to apply that formula to all applications within the C-23

basin. See, Section 120.68(12)(c). The peak discharge from Westwood during a

10-year/72-hour design storm is 21.3 cubic feet of water per second. The

combined flow across both Westwood and Canoe Creek surface water management

system is no more than 34 cubic feet of water per second. If the improvements

contained in the District's modification proposal are made, the basin formula is

satisfied.

46. The evidence for Canoe Creek includes no engineering analyses to

contradict the backwater analyses of Mr. Searcy, which the District staff

reviewed. The District's use of the C-23 basin formula in that analyses is not

arbitrary or capacious. It would be improper for the District to fail to use

that criteria in this proceeding.

Legal effect of easement.

47. The easement granted by the predecessor in title of the Canoe Creek

Property Owner's Association to the developer of Westwood does not show, on its

face, a limitation of the water flow. The easement is designed to permit the

drainage of the historic flow of surface waters across Westwood through Canoe

Creek, because there was no provision to route a portion of Westwood's surface

water elsewhere. Therefore, this easement included historic flows first coming

onto Westwood from the 56 parcel to its west. Because the modification

calculations use the C-23 basin criteria, which is based on historic flows in

the basin, the easement Canoe Creeks developer gave to the Westwood developer is

not being surcharged by the modications. Cf., Corrigans v. Sebastian River

Drainage Dist., 223 So.2d 57 (Fla. 4th DCA 1969).

The existing system.

48. The evidence is persuasive that the existing system for surface water

management does not satisfy District criteria because the existing permit

resulted from errors on the part of both the Canoe Creek or their predecessors

and of the District, the original Canoe Creek system did not take into account

historic water surface flow the 56 acre tributary area. The current system,

therefore, does not satisfy District criteria, even though the permit to be

modified actually was issued by the District. The evidence in this case does

provide, however, reasonable assurance that a modified system will meet the

District's criteria, based on the topographical analysis and survey data

prepared by Mr. Searcy, the application of the Canal 23 basin formula, and the

flood routing utilizing the applicable 10 year/3 day design storm in the

backwater analysis to assess the capability of the system to handle surface

water during design storm situations. Because the historic surface water flow

is to the east and southeast, it was proper for the District to reject the

suggestion that the additional flows be directed north, to Mid-Rivers Yacht and

Country Club, or south into the Rustic Hills subdivision.

Burden of proof.

49. The District is attempting to modify Canoe Creek's permit and

therefore must bear the burden of persuasion on the issue of whether the

modifications are necessary to meet applicable statutes and permitting criteria

found in District rules. Florida Department of Transportation vs. J.W.C.

Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The testimony by District

witnesses and by Westwood's experts is persuasive that the modifications

proposed are necessary. Mr. Searcy performed a specific data gathering,

including the preparation of topographic maps, and analytical studies of the

entire area. His studies included the impacts on the combined Westwood/Canoe

Creek surface water management systems as they relate to every relevant

permitting issue under Rule 40E-4.301, Florida Administrative Code. While the

evidence from Mr. Mather with respect to historic water flows presented a

reasonable basis for contesting the analysis of Mr. Searcy, Mr. Searcy's

evidence was the most persuasive.

50. The District's authority under Rule 40E-1.609(2) to modify the terms

of a permit include modifications necessary to "prevent a public or private

nuisance." The current system does not meet the District's flood criteria and

this can be characterized appropriately as a public nuisance. This related

ground also justifies the modification of the Canoe Creek permit.

Detrimental Reliance.

51. The District's modification rule specifically requires it to address

the issue of detrimental reliance when modifying a permit. Under Rule 40E-

1.609(2), Florida Administrative Code, when modifying a permit which is a public

or private nuisance, or when continued utilization of the permit is inconsistent

with the objectives of the District "due consideration shall be given to the

extent to which the permittee has detrimentally relied upon the permit".

52. Canoe Creek has argued that it has constructed a drinking water plant,

on which homes in the subdivision depend. Canoe Creek believes the operation of

the drinking water plant will be endangered by the modifications, because the

cone of depression associated with its drinking water supply would be too close

to retained surface water. There is no problem here, however, because the water

which may remain in the swale leading from the Canoe Creek Lake to the outfall

structure during and after rains would not be in contact with the ground water.

There will be no direct connection. The 300 foot separation criteria found in

Section 3.2.2.4 of the Basis of Review will not be violated, because there is no

"wet detention," as that term is defined in Section 2.15 of the Basis of Review,

within 300 feet of the public drinking water supply well of Canoe Creek.

Collateral Estoppel.

53. Canoe Creek participated as a party opponent in the proceeding on the

application Westwood filed for modification of its own surface water management

system. Westwood contends Canoe Creek should be foreclosed from litigating

again issues decided in the prior case, since the same physical improvements and

underlying data and analysis form the basis for the District's proposal to

modify the Canoe Creek surface water management system as were involved in the

Westwood application case. Westwood believes the District's application to

modify the Canoe Creek permit should be granted as a matter of law. It is

unnecessary to delve into the issue of whether participation in the earlier case

binds the Canoe Creek property owners, for after full consideration of the

evidence in this record, I independently have come to the same conclusion as

Hearing Officer Arrington in the prior case. The modifications proposed by the

District should be granted.

Improper Motive.

54. Canoe Creek also argued that the modifications sought by the District

in this case are the product of improper motives of the District and of

Westwood. Evidence on this matter was generally rejected, because the question

whether the Canoe Creek surface water management system should be modified rises

or falls on the facts offered by the District to show that the current Canoe

Creek system poses a danger to public health or safety, constitutes a nusiance,

or that its operation has become inconsistent with the objectives of the

District. There is no reason to explore subjective motivations of District

employees. It would certainly be illogical to fail to modify the Canoe Creek

surface water management permit if the facts show modification is warranted. At

bottom, allegations of "improper purpose" raise the issue of whether the

District seeks to mischaracterize the facts in order to achieve a modification

which the facts do not warrant. The Canoe Creek homeowners may believe that

they were sued by the District in order to accomplish an objective for Westwood.

Westwood may obtain a collateral benefit from the modification of the Canoe

Creek permit. Modification should be required because it is warranted under

applicable criteria found in District rules.

Attorneys fees.

55. Westwood has sought to have attorneys fees imposed as sanctions

against Canoe Creek for a series of motions Canoe Creek filed shortly before the

final hearing. They included a motion to dismiss, a motion for judgment on the

pleadings, motion for continuance, motion to supplement its motion to dismiss,

and motion to compel the Division of Administrative Hearings to relinquish

jurisdiction. All those motions were denied, but I am not prepared to say that

they were "frivolous" as that term is used in Section 120.57(1)(b)5, and

interpreted by the District Court of Appeal in Mercedes Lighting and Electrical

Supply, Inc. v. State of Florida, Department of General Services, 560 So.2d 272

(Fla. 1st DCA 1990). Canoe Creek homeowners had used several of these motions

as a way to raise the issue of whether it should be a party to these proceedings

at all, rather than the original permittee, the developer of Canoe Creek, Arthur

Quinn. Westwood also argued that the witness list filed by Canoe Creek, which

identified approximately 50 witnesses, was proof that the Canoe Creek homeowners

used this proceeding to harass Westwood, cause unnecessary delay to it or to

needlessly increase the cost of litigation. The more reasonable interpretation

of the length of Canoe Creek's witness list was that its representative wanted

to be sure that anyone they thought might be called would not be excluded for

failure to be listed. It has become obvious that there is substantial animosity

between the developers of Westwood, who believe the homeowners at Canoe Creek

are being intransigent, and the Canoe Creek homeowners, who believe the Westwood

developers are unreasonably attempting to surcharge an existing easement and to

force them to handle additional water just so the Westwood developer can turn a

profit. The facts show that through error, the original developer of Canoe

Creek and the water management district staff did not realize the extent of the

historic waterflow across the Canoe Creek property, and the permitted Canoe

Creek surface water system is underdesigned. Although Westwood seeks to

characterize Canoe Creek's final barrage of motions as frivolous, the most that

can be said of them is that they were not well taken and therefore were not

granted. Westwood's application for fees under Section 120.59(6), Florida

Statutes, meets the same fate. Section 120.59(6)(c) is designed to penalize

intervenors who participate in a series of proceedings to harass or otherwise

delay their opponents. The most common situations under Section 120.59(6)(c)

arise from repeated requests for hearings by environmentalists challenging

discrete but interrelated permits for large development projects they oppose.

As a result, the statute instructs the hearing officer to

"consider whether the non-prevailing adverse

party has participated in two or more other

. . . proceedings involving the same

non-agency prevailing party and the same

project as an adverse party, and in which

such two or more proceedings the

non-prevailing adverse party did not

establish either the factual or legal merits

of its position, and [the hearing officer]

shall consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the non-prevailing

adverse party participated in the pending

proceeding for an improper purpose."

Section 120.59(6)(c).

The special circumstance which rebuts any inference of an improper purpose

on the part of Canoe Creek for participating in this case is that this action

was brought directly against Canoe Creek by the water management district. In

the prior application to modify the Westwood permit, no party sought, nor could

any party have obtained, relief against Canoe Creek. There is no reason why

Canoe Creek should be disabled from defending itself here. Canoe Creek's

evidence, especially that of Mr. Mathers concerning historic waterflows over the

property, was cogent and well reasoned. Although Canoe Creek did not prevail,

it was entitled to the opportunity to show that the District's proposed

modification proceeded upon incorrect factual assumptions about historic

waterflows. Similarly, although Mr. Mathers criticisms of the backwater

analysis done by Mr. Searcy have not been persuasive, the questions raised were

appropriate. Canoe Creek's opposition to the permit modification was neither

frivolous nor undertaken for an improper purpose as those terms are defined in

Section 120.59(6)(c) or (e), Florida Statutes.

Collateral Issues.

56. The hearing was limited to whether the permit modifications sought by

the District should be granted, and Canoe Creek was not permitted to raise

collateral issues. The question whether the modifications would result in

action by the Department of Environmental Regulation to close its public

drinking water well was litigated indirectly. The issue was presented in

determining the issue of detrimental reliance under Rule 40E-1.609(2), Florida

Administrative Code, and in determining the question whether the proposed

modification violated the standards in the District's Basis of Review, Section

3.2.2.4, by locating wet detention within 300 feet of a public drinking water

supply. The relevant findings have been made. There is no wet detention within

300 feet of the public drinking water supply. The presence of the drinking

water wells do not preclude the modification of the Canoe Creek surface water

management permit.

Standing.

57. The challenge made by Westwood to the standing of Canoe Creek Property

Owner's Association is unfounded. The homeowners had standing in this

proceeding because it was filed against the property owners' association by the

District. The association is responsible for operation of the system under

Special Condition 2 of the Canoe Creek permit. This alone gives the homeowners

standing. Moreover, the homeowners proved that they all rely on the drinking

water plant which serves the homes in the Canoe Creek subdivision. The

potential effect of the permit modification was such that they clearly enjoyed

standing to oppose the District's attempt to modify their surface water

management permit.

RECOMMENDATION

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

RECOMMENDED that the modifications to the Canoe Creek Surface Water

Management permit number 43-00135-S made in the District's administrative

complaint and order/notice of intended modification be granted.

DONE and ENTERED this 31st day of July, 1991, at Tallahassee, Florida.

___________________________________

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

Rulings on the findings proposed by South Florida Water Management District:

1. - 4. Discussed in the Preliminary Statement.

5. Adopted in Finding 3.

6. Adopted in Finding 4.

7. Adopted in Finding 5.

8. Adopted in Finding 6.

9. Adopted in Finding 7.

10. Adopted in Findings 7 and 8.

11. Adopted in Finding 10.

12. and 13. Adopted in Finding 10.

14. Adopted in Finding 12.

15. Adopted in Finding 13.

16. Adopted in Finding 14.

17. and 18. Adopted in Finding 15.

19. and 20. Adopted in Finding 16.

21. Adopted in Finding 17.

22. Adopted in Finding 11.

23. Adopted in Finding 15.

24. Rejected as argument.

25. Adopted in Finding 19.

26. Adopted in Finding 21.

The remaining paragraphs are treated as if they had been numbered.

27. Adopted in Finding 24.

28. Adopted in Finding 23.

29. Adopted in Finding 24.

30. Adopted in Finding 26.

31. Adopted in Finding 27.

32. and 33. Adopted in Finding 28.

34. Adopted in Finding 29.

35. Adopted in Finding 30.

36. - 38. Adopted in Finding 31.

39. Adopted in Finding 32.

40. Adopted in Finding 33.

41. Adopted in Finding 34.

42. Adopted in Finding 35.

43. Adopted in Finding 36.

44. Adopted in Finding 37.

45. Adopted in Finding 38.

46. Adopted in Finding 39.

47. Adopted in Finding 40.

48. Adopted in Finding 41.

49. Adopted in Finding 40.

Rulings on the findings proposed by Westwood:

1. - 7. Discussed in Preliminary Statement.

8. Adopted in Findings 3 and 4.

9. Adopted in Findings 10 and 17.

10. Adopted in Findings 7 and 8.

11. Adopted in Finding 9.

12. Adopted in Findings 4 and 9.

13. Adopted in Findings 10 and 11.

14. Adopted in Findings 3 and 4.

15. Adopted in Findings 8 and 10.

16. Adopted in Finding 12.

17. Adopted in Finding 13.

18. Adopted in Finding 14.

19. Adopted in Findings 10 and 15.

20. Adopted in Finding 16.

21. Adopted in Findings 10 and 17.

22. Adopted in Findings 10, 17 and 19.

23. Rejected as unnecessary.

24. Adopted in Findings 10, 17 and 19.

25. Adopted in Finding 15.

26. Adopted in Finding 2, except for the final two sentences which are

rejected as unnecessary.

27. Adopted in Findings 12 and 19.

28. Adopted in Findings 18 and 19.

29. Adopted in Finding 20.

30. Adopted in Findings 18 and 21.

31. and 32. Adopted in Finding 23.

33. Adopted in Finding 22.

34. Rejected as unnecessary.

35. Adopted in Finding 24.

36. Adopted in Finding 25.

37. Adopted in Finding 26.

38. Adopted in Finding 27.

39. Adopted in Finding 28.

40. Adopted in Findings 27 and 28.

41. Adopted in Finding 29.

42. Adopted in Finding 30.

43. - 45. Adopted in Finding 31.

46. Adopted in Finding 32.

47. Adopted in Finding 33.

48. Adopted in Finding 34.

49. Adopted in Finding 35.

50. Adopted in Finding 36.

51. Adopted in Finding 37.

52. Discussed in Finding 38.

53. Adopted in Finding 39.

54. Adopted in Finding 40.

55. Adopted in Finding 41.

56. - 58. Rejected as redundant.

Rulings on the findings proposed by Canoe Creek:

1. Adopted in the Preliminary Statement.

2. Adopted in Findings 3 through 7.

3. Adopted in Finding 15.

4. and 5. Rejected as irrelevant. The acreage drained according to the

permit is consistent with the application made to the District, but not with the

historic sheet flow.

6. Rejected. The project was not constructed properly, see, Finding 25.

7. Sentence one adopted in Finding 11. Sentence 2 and proposed finding 8

are rejected for the reasons stated in Finding 17.

9. Adopted in Finding 14.

10. Rejected as unnecessary and unpersuasive.

11. Rejected as unnecessary.

12. Rejected for the reasons found in Finding 18. Where there is a basin

discharge rate, historic discharge is not determined for an individual parcel.

13. Rejected. See, Findings 19 and 20. There is no Crane Creek permit in

evidence, which Respondents refer to in their proposed findings as RX 181.

14. Rejected. See, Findings 17 through 20.

15. and 16. Rejected. See, Finding 20.

17. Rejected as unnecessary.

18. Generally accepted in Finding 21.

19. Rejected because routings of the flow north or south would be

inconsistent with the historic sheet water flow.

20. and 21. Rejected. See, Findings 19 and 20.

22. Rejected. See, Finding 17.

23. Rejected. See, Findings 10, 17 and 19.

24. Rejected; it is fortunate that there has not been flooding before this

time. During the last heavy rain in August of 1988 there may have been no

flooding because water from the western 56 acres and Westwood broke through the

south of the Westwood berm and could flow south into Bessey Creek in an

unauthorized manner.

25. and 26. Adopted in Finding 23.

27. and 28. Rejected because this is not an original permit application, but

an action by the District to require modification of an existing permit. It is

not necessary for the District to file a permit application with itself. This

modification procedure is appropriate, and focuses narrowly on the problems with

the current system.

29. Rejected as unnecessary.

30. Rejected for the reasons given for rejecting Findings 27 and 28.

31. Rejected. The Searcy report was generally checked by the District

staff, although they did not conduct an independent analysis of their own.

32. and 33. Rejected. See, Finding 35.

34. Rejected. See, Findings 18 and 21.

35. Rejected, Searcy determined that the two systems would peak at different

times. See, Finding 14.

36. Rejected, there will be no turbidity problems because there is no

increase in velocity of the water. See, Finding 31. Also, there is no

additional peak flow of water, see, Finding 14. The peak flow from Westwood

remains 21 CFS.

37. Rejected. See, Finding 34.

38. Rejected. See, Finding 35.

39. Rejected. See, Finding 39.

40. Rejected. See, Finding 35.

41. Rejected. See, Finding 34.

42. Rejected as a conclusion of law, but the standards found in Rule 40E-

4.301 are applicable.

43. Rejected as unnecessary.

44. and 45. Rejected as argument, not a finding of fact.

46. Rejected because the developer of Canoe Creek, the developer of

Westwood, and the District were mistaken in designing their surface water

management systems by not including drainage from the 56 acres to the west of

Westwood.

47. The system is inconsistent with the District objectives. It is

fortunate that the system has not flooded yet, but if not changed, it will. The

discharge of water which took place in August of 1988 from the south perimeter

of Westwood will no longer take place. Even if the August of 1988 storm was not

the equivalent of a design storm, when a design storm occurs, the current system

will be proven to be inadequate by sad experience.

48. Rejected because the testimony of Mr. Searcy was more persuasive.

49. Rejected because the testimony of Mr. Feinstein was unpersuasive. See

also, Finding 14.

50. Rejected. See, Finding 35.

51. Rejected. See, Findings 31-33.

52. Rejected as unnecessary, the knowledge of Mr. Unsell is not

determinative.

53. Rejected as redundant.

54. Rejected. See, Findings 23 and 24. In a design storm, the proposed

modifications will protect Canoe Creek from flooding. The current system will

not accommodate historic water flows.

55. Rejected because the routing in the modification reflects the historical

water flow.

56. Rejected. See, Finding 12.

57. Rejected as unnecessary.

58. Rejected because the historic water flow is not north to Mid-Rivers or

south to Rustic Hills.

59. Rejected as inconsistent with the historic flow.

60. and 61. Rejected, the testimony of Mr. Searcy was more persuasive, See,

e.g., Tr. at 661.

62. Rejected. I am not persuaded that improvements to the northern route of

Canoe Creek are needed.

63. and 64. Rejected as redundant.

65. Rejected as unnecessary.

66. Rejected because Rule 40E-4.301(1)(k) does not apply, See, Finding 38.

COPIES FURNISHED:

John J. Fumero, Esquire

3301 Gun Club Road

Post Office Box 24680

West Palm Beach, Florida 33416

Manuel Farach, Esquire

Post Office Box 778

Stuart, Florida 3499-50778

Don Mooers

Qualified Representative

Post Office Box 1147

Palm City, Florida 34990

Terry E. Lewis, Esquire

Robert P. Diffenderfer, Esquire

Messer, Vickers, Caparello,

French, Madsen & Lewis, P.A.

2000 Palm Beach Lakes Boulevard

Suite 900

West Palm Beach, Florida 33409

John Wodraska, Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416

Daniel H. Thompson, General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.