95-002196 John Higgins, Maureen Higgins, Louis Mitchell, Betty Mitchell, William Spence, June Spence, Robert Werner, And Lee Werner vs. Misty Creek Country Club, Inc., And Southwest Florida Water Management District Status: Closed Recommended Order on Thursday, October 19, 1995.

Summary: Management and Storage of Water application change from retention/filter to detention. Storage of reuse water ok, but for overlooked pond connected to larger lake by pipe.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN and MAUREEN HIGGINS, LOUIS )

and BETTY MITCHELL, WILLIAM and )

JUEN SPENCE, ROBERT and LEE WERNER,)

DON and HALINA BOGDANSKE, CHARLES )

and ROSEMARY BIONDOLILLO, IGNATIUS )

and JUDITH BERTOLA, and GEORGE and )

DOROTHY HOLLY, )

)

Petitioners, )

)

vs. ) CASE NO. 95-2196

)

MISTY CREEK COUNTRY CLUB, INC., )

and SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On August 14 and 15, 1995, a formal administrative hearing was held in this

case in Sarasota, Florida, before J. Lawrence Johnston, Hearing Officer,

Division of Administrative Hearings.

APPEARANCES

For Petitioners: Patricia A. Petruff, Esquire

D. Robert Hoyle, Esquire

Dye & Scott, P.A.

1111 Third Avenue West

Bradenton, Florida 34206

For the District: Mark F. Lapp, Esquire

Assistant General Counsel

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

For Misty Creek: Mary F. Smallwood, Esquire

Ruden, Barnett, McClosky, Smith,

Schuser & Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the Southwest Florida Water Management

District (the District) should grant the application of the Misty Creek Country

Club, Inc. (the Club), to modify MSSW Permit No. 400037.

PRELIMINARY STATEMENT

On or about September 19, 1994, the Club applied for permission to modify

its MSSW Permit No. 400037 to allow the introduction of reuse water from

Sarasota County's Bent Tree wastewater treatment plant, instead of well water,

into Lake No. 7 when the lake's water level drops to 29.5' so as to bring the

water level up to 30.0'. During preliminary phases of the application process,

the Club changed the two elevations to 30.05' and 31.0'. Other than the conduit

and automatic valve for the reuse water, no other changes to the existing

surface water management system were required or proposed.

After review of additional information requested by the District and

supplied by the Club, the District gave notice of its intent to approve the

application on or about March 30, 1995.

On or about April 14, 1995, the Petitioners filed a Petition for

Administrative Proceeding. The District referred the matter to the Division of

Administrative Hearings (DOAH), where it was assigned Case No. 95-2196 and

scheduled for final hearing on August 14, 1995. At the parties' request, August

15 was added as an additional day of hearing time.

A Prehearing Stipulation was filed on August 4, 1995. On August 11, 1995,

a Supplement to Prehearing Stipulation was filed to reflect the filing of an

amendment to the permit application on August 9, and the District's notice of

intent to grant the amended application issued on August 11, 1995.

Under the amended application, the Club would plug an underdrain and weir

in Lake No. 7 and add earthen berm work so as to retain water in the lake to

elevation 33.6'. As a result of the amendments to the application, the Club

proposed to eliminate any discharge from Lake No. 7 during storm events up to

and including a 100-year, 24-hour storm event.

At final hearing, the Club called four witnesses, the District called three

witnesses, and the Petitioners called seven witnesses during the parties' cases

in chief. (The proffered testimony of a real estate appraiser called by the

Petitioners was ruled irrelevant; the testimony of an additional witness was

stipulated, obviating the necessity to call the witness.) In rebuttal, the Club

recalled four witnesses, and the District recalled one.

The Club had the following exhibits admitted in evidence: M-3 through M-

10; M-14 through M-17; M-19; and M-22 through M-24. The District had exhibits

D-1 through D-9 admitted in evidence. The Petitioners had the following

exhibits admitted in evidence: P-1 through P-9; P-11; P-12; P-14; P-17; P-18;

P-20; and P-21.

At the end of the hearing, the parties ordered the preparation of a

transcript of the final hearing and asked for and were given until September 29,

1995, in which to file proposed recommended orders. Explicit rulings on the

proposed findings of fact contained in the parties' proposed recommended orders

may be found in the Appendix to Recommended Order, Case No. 95-2196.

Finally, on October 3, 1995, the Petitioners filed a Motion for Judicial

Notice, which was opposed by the District and the Club, regarding a draft

District Technical Guideline. Based on Section 90.202, Fla. Stat. (1993), the

motion is denied.

FINDINGS OF FACT

Background

1. Petitioners are owners of property adjacent to Lake No. 7 of the Misty

Creek Country Club in a development called The Preserves at Misty Creek--

specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary

Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A

(Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots

119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen

Higgins), and lot 121 (William and June Spence).

2. Respondent, the Misty Creek Country Club (the Club), operates a golf

course and country club located at The Preserves at Misty Creek under a 99-year

lease with Gator Creek Lands, the developer of The Preserves at Misty Creek.

Existing System Design and Application for Permit Modification

3. In 1985, Respondent Southwest Florida Water Management District, issued

a surface water management permit for development of a 730-acre residential

development and golf course. The District subsequently issued to the Club

operation phase authorization for the surface water management system associated

with the golf course portion of the development in March of 1992.

4. Under the original permit, Lake No. 7 was part of the overall

stormwater management system for the golf course. The lake is approximately

seven and half to eight acres in size and is part of a total drainage basin of

approximately twenty-eight acres.

5. As originally designed, Lake No. 7 is a detention with filtration

system. An underdrain in the side of the bank provides water quality treatment,

filtering out oils and greases, fertilizers and other contaminants. A control

elevation of 31.02 was established for Lake No. 7 through construction of a

weir. Between elevation 31.00 and 31.02, water discharges through the

underdrain system providing water quality treatment. Above elevation 31.02,

water flows over the control structure into Lake No. 6, and ultimately

discharges to Cow Pen Slough, which is Class III waters of the state.

6. The Club presently has a water use permit from the District which

allows withdrawal of groundwater for irrigation of the golf course. Groundwater

is stored in Lake No. 7 prior to use for irrigation when needed to augment water

in the lake.

7. Special Condition Number 2 of the water use permit required the Club to

investigate the feasibility of using reclaimed or reuse water in lieu of

groundwater for irrigation purposes at the golf course.

8. As a result of the investigation required by Special Condition Number 2

of the water use permit, the Club filed an application with the District to

modify its surface water management permit to allow for the introduction of

reuse water into Lake No. 7. Under that application, there would have been no

significant modifications to the stormwater management system. Reuse water

would have replaced groundwater as a source for augmenting water in the lake

when needed for irrigation. An eight-inch service line would convey the reuse

water to Lake 7, and a float valve would control the introduction of reuse water

into Lake No. 7. When water levels in the lake fell below elevation 30.5', the

float valve would open the effluent line to allow introduction of reuse water

into the lake; when the water elevation in the lake reached 31.0', the float

valve would shut off the flow of water. There would be gate valves on either

side of the structure that could be manually closed, if necessary, to stop the

flow of reuse water into the lake if the float valve malfunctioned. Club

personnel would have access to the gate valves and could manually stop the flow

of reuse water into the lake if necessary.

9. On August 9, 1995, just days prior to the final hearing in this matter,

the Club proposed to modify its application to make certain structural changes

in the design of the surface water management system. Specifically, the Club

proposed to plug the window in the weir, raise the elevation of the weir or

control structure to elevation 33.6, raise the elevation of the berm along the

north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the

underdrain. The purpose of the proposed modifications to the design of the

system was to assure that no discharge from Lake No. 7 would occur up to and

including the 100-year storm event. A 100-year storm event is equal to 10

inches of rainfall in a 24-hour period.

Source and Quality of Reuse Water

10. The Club also entered into an agreement with Sarasota County to accept

reuse water from the county's new Bee Ridge wastewater treatment facility. That

agreement specifies the terms under which the Club will accept reuse water from

the County.

11. The County's Bee Ridge facility is presently under construction and is

not yet operating. As permitted by the Department of Environmental Protection,

the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment

system which is a licensed process to provide advanced waste treatment. The

construction permit establishes effluent limits for the facility that are

comparable to a level of treatment known as advanced secondary treatment, but

the County Commission for Sarasota County has instructed the County staff to

operate the Bee Ridge facility as an advanced waste treatment plant.

12. Advanced waste treatment is defined by the quality of the effluent

produced. For advanced waste treatment, the effluent may not exceed 5

milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids

(TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total

phosphorus. It also requires high level disinfection. Advanced secondary

treatment requires the same level of treatment for TSS but the limit for

nitrates is 10 milligrams/Liter. High level disinfection is also required for

advanced secondary treatment. In Florida, reuse systems require a minimum of

advanced secondary treatment. High level disinfection is the level of treatment

that generally is accepted as being a reasonable level of treatment.

13. The Bee Ridge permit issued to Sarasota County identifies the Club as

one of the recipients of reuse water for irrigation. Condition Number 21 of

that permit provides that the use of golf course ponds to store reuse water is

not authorized under the County's permit until issuance of a separate permit or

modification of the County's permit. Although the District did not require

Misty Creek to submit any information about the modification of the County's

permit, there was no basis for assuming that the County permit could not be

modified. To the contrary, the permit provides that authorization may be

obtained by permit modification.

14. Under the late modification to the Club's application, the reuse water

transmission line and float valve system, with backup manual gate valve system,

is unchanged. So are the water elevations at which the float valve system will

automatically introduce reuse water into Lake 7 and shut off. Sarasota County

already has constructed the water transmission system that would deliver reuse

water to the Club.

15. At the request of the District, the Club provided copies of the

drawings of the float valve structure as permitted by the Department of

Environmental Protection. The District did not require certified drawings of

that structure. But the District will require the Club to provide as-built

drawings following completion of construction prior to the introduction of reuse

water into Lake No. 7.

Property Ownership

16. Each of the Petitioners owns a residential lot adjacent to Lake No. 7.

17. At the time of the Petitioners' purchase of the individual residential

lots, the Club leased certain property immediately west of Lake No. 7 from the

developer of The Preserve at Misty Creek. The leased premises included a piece

of land extending into the lake known as the 19th green. As a result of

negotiations between the Club and the developer, it was determined that the 19th

green would be removed and the land between the approximate top of bank of Lake

No. 7 and the private residential lots would be released from the Club's lease.

The developer subsequently conveyed the property that had been released from the

Club's lease to the individual lot owners (the "A" parcels listed in Finding 1).

18. At the time of the conveyance of the additional parcels, the attorney

for the developer prepared deeds for each individual parcel with a metes and

bounds description off the rear of the residential lots to which they were being

added.

19. While the Club's application for modification of its surface water

management permit was being processed by the District, counsel for Petitioners

provided the District with copies of the individual deeds and questioned whether

the Club had ownership or control of the land which was the subject of the

application sufficient to meet the District's permitting requirements.

20. In response to a request for information regarding the ownership of

the property that was the subject of the application, the Club submitted to the

District a topographical survey prepared by Mr. Steven Burkholder, a registered

professional land surveyor with AM Engineering.

21. The topographical survey depicted: the elevation of the water in the

Lake No. 7 on the day that the survey was conducted, labeled "approximate

water's edge"; the elevation of the "top of bank"; and the easternmost line of

private ownership by Petitioners. Mr. Burkholder determined the line of private

property ownership by reproducing a boundary survey attached to the individual

deeds conveying the additional parcels to the Petitioners. He testified that he

was confident that the topographical survey he prepared accurately represented

the most easterly boundary of the Petitioners' ownership.

22. The elevation of the line of private ownership as depicted on the

survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to

35.2. The elevation of the line labeled "top of bank" ranges from a high of

35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be

controlled by the elevation of the modified control structure which is proposed

to be set at elevation 33.6. After modification of the surface water management

system to retain the 100-year storm event, at no time would water levels in the

lake rise above the existing elevation of the "top of bank."

23. The Petitioners testified that they believed that they owned to the

water's edge or edge of the lake, but Mr. Burkholder testified that a property

boundary could not be determined based on an elevation depicting the water's

edge because that line would change as the level of the water rose and fell.

The Petitioners also presented evidence that the developer's attorney made

representations to them that their ownership extended to the "approximate high

water line." But there appears to be no such thing as an "approximate high

water line" in surveying terms. Where the boundary of a lake is depicted on a

survey it generally is depicted from top of bank to top of bank. In any event,

the legal descriptions of the parcels conveyed to the Petitioners were not based

on a reference to either a water line or the water's edge or the lake at all.

Instead, the legal descriptions were based solely on a metes and bounds

description off the rear of the residential lots.

24. Notwithstanding some contrary evidence, if the Petitioners owned to

the water's edge, such ownership would require the Petitioners to consent to or

join in the amended application for the modification of the Club's surface water

management permit. Information regarding the ownership or control and the legal

availability of the receiving water system is required as part of the contents

of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative

Code. The amended application requires the ability to "spread" Lake 7 in the

direction of the Petitioners' property. If the Petitioners own the property on

which the Club intends to "spread" Lake 7 in order to make the amended

application work, the Petitioners must consent or join.

25. The issue of the legal ownership and control of the Petitioners and

the Club currently is in litigation in state circuit court. If the state

circuit court determines that the easterly boundary of the "A" parcels lies to

the east of the "top of bank," consideration would have to be given to modifying

any permit issued to the Club to insure that the designed "spread" of Lake 7 in

a storm event up to and including a 100-year storm event does not encroach on

the Petitioners' property.

District Permit Requirements

26. The District has never before processed an application for a surface

water management permit allowing commingling of storm water and reuse water.

The District applied Chapter 40D-4, Florida Administrative Code, in reviewing

the Club's permit application. There are no specific provisions in Rule 40D-4

or the District's Basis of Review for Surface Water Management Permit

Applications that address the commingling of stormwater and reuse water; on the

other hand, no rules of the District prohibit the introduction of other types of

water into a stormwater treatment pond so long as the requirements of Rule 40D-4

are met. The District has the authority to allow stormwater and reuse water to

be commingled.

27. Section 40D-4.301, Florida Administrative Code, contains the

conditions for issuance of a surface water management permit.

Permitting Criteria

28. In order to obtain a surface water management permit to commingle

stormwater and reuse water in Lake 7, the Club must provide reasonable

assurances that the proposed modifications to its existing system will provide

adequate flood control and drainage; not cause adverse water quality and

quantity impacts on receiving waters and adjacent lands; not result in a

violation of surface water quality standards; not cause adverse impacts on

surface and groundwater levels and flows; not diminish the capability of the

lake to fluctuate through the full range established for it in Chapter 40D-8,

Florida Administrative Code; not cause adverse environmental impacts to

wetlands, fish and wildlife or other natural resources; be effectively operated

and maintained; not adversely affect public health and safety; be consistent

with other public agency's requirements; not otherwise be harmful to water

resources of the District; and not be against public policy.

29. No surface or groundwater levels or flows have been set for this area

of the District, so that permit criterion is not applicable to the Club's

application.

30. The Club's application will not impact wetlands or fish and wildlife

associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are

no wetlands regulated by the District in the project site.

31. The Club has submitted to the District an operation and maintenance

plan for the modified surface water management system. The operation and

maintenance plan is in compliance with the District's permitting criteria

contained in Rule 40D-4.301(1)(g).

32. The District's regulation with respect to the requirement that a

project not adversely affect the public health and safety is based on the

specific requirements of Chapter 40D-4, Florida Administrative Code, and the

Club has complied with this criterion.

33. The permitting criterion that a project must be consistent with the

requirements of other public agencies was met by inclusion in the permit of

Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition

No. 3, which require that the surface water management permit be modified if

necessary to comply with modifications imposed by other public agencies.

34. The District's regulation with respect to the requirement that a

project not otherwise be harmful to the water resources within the District is

based on the specific requirements of Chapter 40D-4, Florida Administrative

Code, and the Club has complied with this criterion.

35. The District's regulation with respect to the requirement that a

project may not be against public policy is based on the specific requirements

of Chapter 40D-4, Florida Administrative Code, and the Club has complied with

that criterion.

36. The project will not have an adverse impact on water quality or

quantity in receiving waters or adjacent lands.

37. Under the District's regulations, the project would not be permittable

if it caused flooding on property owned by other persons. Two concerns

regarding off-site flooding were raised by Petitioners: first, the potential for

flooding of the Petitioners' property; and, second, the potential for flooding

of secondary systems connecting to Lake No. 7 such as private roads in the

development.

38. The project would violate the requirements of Section 40D-4.301(1)(a),

Florida Administrative Code, which requires that a proposed project provide

adequate flood protection and drainage, if raising the weir and berm elevation

to 33.6 would cause the level of water in Lake No. 7 to move laterally up the

bank and encroach on property owned by Petitioners. However, the Club has given

reasonable assurances that the Petitioners own only to the "top of bank" and

that raising the weir elevation to 33.6 would not cause water levels to rise

above the "top of bank" of the lake. If it is determined in pending state

circuit court proceedings that the Petitioners own beyond the "top of bank," any

permit for the Club's project might have to be modified to avoid flooding the

Petitioners' property.

39. With respect to potential flooding of secondary systems, such as

adjacent roadways, raising the elevation of water in Lake No. 7 would decrease

the capacity of the storm sewers draining into the Lake. However, the proposed

modifications would not increase the area of impervious surface in the drainage

basin or decrease the size of the lake, and water levels in the roadways

probably would not rise much higher than under present circumstances. The

existing storm sewer system is only designed for a 10-year storm event, so the

supplemental effect on roadway flooding from retaining a 100-year storm event in

Lake No. 7 probably would be negligible.

40. The Club gave reasonable assurances that any increase in water levels

on the roadways from the proposed modifications would not be considered a

significant adverse effect because it still would not affect public access.

Sarasota County's land development regulations allow flooding in streets of up

to 12 inches for a 100-year storm event, nine inches for a 25-year storm event,

and six inches for a 10-year storm event.

41. No portion of the proposed project area is within the 100-year

floodplain.

42. The project will not have an adverse effect on water quantity

attenuation or cause flooding of the Petitioners' property or secondary systems,

such as adjacent roadways.

43. Petitioners have protested the effect that this project will have on

water quality within Lake No. 7, itself.

44. Surface water quality standards do not apply within a stormwater pond.

Stormwater ponds are essentially pollution sinks intended to receive polluted

runoff. Where there is no discharge from a pond, water quality treatment is

irrelevant.

45. Lake 7 is not a "water resource within the District" pursuant to

Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on

water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j)

limits the issues to be considered by the District to downstream water quality,

water quantity, floodplain impacts, and wetlands impacts.

46. The commingling of wastewater effluent treated to a level of advanced

secondary or advanced waste treatment (reuse water) would improve water quality

within a stormwater treatment pond at least 90 to 95 percent of the time.

Stormwater is very low quality compared to reuse water. In most respects, reuse

water also will be better quality than the well water presently being used to

augment the pond. It is expected to be better quality than unimpacted water in

the receiving waterbody with respect to nitrogen content and only slightly worse

with respect to phosphorus content. The addition of reuse water should not

promote more algal growth; rather, it should reduce the likelihood of algal

growth. It also should not increase the incidences of fish kills in Lake 7.

Nor should it alter the nutrient concentrations in Lake 7 so as to result in an

imbalance of the natural population of aquatic flora and fauna.

47. In the draft permit originally proposed to be issued to the Club,

permit conditions required that water quality be monitored at the point of

discharge to waters of the state. This requirement was eliminated from the

revised permit as the District determined that it was not necessary in light of

the modification of the system to retain the 100-year storm event.

48. The subject design does not account for recovery of the water quality

treatment volume within a specified period of time. However, there is no such

requirement in District rules when a pond entirely retains the 100-year storm

event, as is the case with this project.

49. Even if there were a discharge from the surface water management

system in a storm event up to and including a 100-year storm event, the Club

gave reasonable assurances that water quality standards in the receiving

waterbody would not be violated because of the effects of dilution.

50. This project will not cause discharges which result in any violations

of applicable state water quality standards for surface waters of the state.

51. Based on a number of factors, including the peak rate factor, the

curve number and the seasonal high water elevation, the water level in Lake 7

would reach an elevation of 33.57 if a 100-year storm event occurs. This

results in the retention of the 100-year storm in Lake 7.

52. The District only considers the 100-year storm event, by itself. It

does not consider other rainfall events before or after it. However, the

District does presume that ponds are at their seasonal high water level when the

100-year storm event occurs and that the ground is saturated.

53. With respect to the seasonal high water level, there was substantial

conflicting testimony. The Club's consultant used a seasonal high water level

of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical

engineering report prepared by Ardaman & Associates. A seasonal high water

elevation of 31.0' was also used in the original permit application in 1985.

54. In concluding that the seasonal high water level should be 31.0, the

Ardaman report relied on several assumptions, including plugging of the

underdrain and overflow weir and no discharges into or pumping out of the lake.

These assumptions were made to establish an historical water level.

55. The Petitioners' consultant disputed the determination in the Ardaman

report that the seasonal high for Lake No. 7 was 31 on the grounds that the

report indicated groundwater levels of 32.8 on three sides of the lake. He also

felt that water levels would rise in the lake over time as a result of it being,

allegedly, a closed system. While he did not have an opinion as to what the

appropriate seasonal high should be, he felt it would be higher than 31 but

lower than 32.8. However, he did no modeling with respect to calculating a

seasonal high water level and would normally rely on a geotechnical engineer,

such as Ardaman & Associates, to calculate seasonal high water levels.

56. The District generally does not receive information as extensive and

detailed as that included in the Ardaman report when it reviews permit

applications. Among other things, the Ardaman report indicates a gradient

across Lake No. 7 which makes the determination of the seasonal high for the

lake difficult. The groundwater flow gradient results from the fact that the

elevation of Lake No. 6 is approximately three feet lower than the elevation in

Lake No. 7. The elevation determined by Ardaman may well be conservative in

that the seasonal high of 31 is above the midpoint of the gradient.

57. Although Lake 7 will be designed as an essentially closed system, it

will have inflow from rainfall, surface runoff, introduction of reuse water and

groundwater inflow, and outflows by way of evapotranspiration, withdrawal for

irrigation purposes, and groundwater outflows.

58. To alleviate any concerns about the validity of the seasonal high, it

would be reasonable to include a permit condition requiring the Club to monitor

the water level in Lake 7 on a daily basis, using staff gauges, after

modification of the control structure. If such monitoring indicated that the

seasonal high water level exceeds 31.0, the District could consider options to

address that situation, including reducing the level at which reuse water is

introduced into the lake or requiring water quality monitoring at the point of

discharge to receiving waters.

59. Groundwater quality is regulated by the Department of Environmental

Protection, not by the District. The DEP permit issued to Sarasota County for

disposal of reuse water at the Club golf course requires the installation of two

groundwater monitoring wells, one in fairly close proximity to Lake No. 7.

The Overlooked Pond

60. There is a small retention pond northwest of Lake 7, near lot 113.

61. Neither the Club nor the District considered the effect of the Club's

late modification of its application on the retention pond northwest of Lake 7

and adjacent properties.

62. Lake 7 and the retention pond to its northwest are connected by an

equalizer pipe. As a result, water levels in the pond will be affected by water

levels in Lake 7.

63. There was no evidence as to the elevations of the banks of the

retention pond.

64. There was no evidence as to whether the modifications to the Club's

application will result in flooding of properties adjacent to the pond.

65. There was no evidence that the Club owns or controls the retention

pond or the properties adjacent to it that might be affected by flooding that

might result from the modifications to the Club's application.

CONCLUSIONS OF LAW

66. The District is a water management district with the power and duty to

exercise regulatory jurisdiction over the administration and enforcement of

surface water management system rules and regulations pursuant to the provisions

of Part IV, Chapter 373, Florida Statutes, and Chapter 40D-4, Florida

Administrative Code.

67. Section 373.413(1), Florida Statutes, gives the District the authority

to require such permits and impose such reasonable conditions as are necessary

to assure the construction or alteration of any stormwater management system,

dam, impoundment, reservoir, appurtenant work, or works will comply with the

provisions of Chapter 373, Part IV, Florida Statutes, and applicable rules

promulgated pursuant thereto, and will not be harmful to the water resources of

the District.

68. Under Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778,

789 (Fla. 1st DCA 1981), if the regulatory agency gives notice of intent to

grant the permit application, the applicant has the initial burden at a formal

administrative hearing of going forward with the presentation of at least a

prima facie case of its entitlement to a permit. Once a prima facie case is

made, the burden of going forward can be shifted to the Petitioners to present

competent substantial evidence, consistent with the allegations of the petition,

that the applicant is not entitled to the permit. Unless the Petitioners

present "contrary evidence of equivalent quality" to that presented by the

applicant and the District, the permit must be approved.

69. The issuance of the permit must be based solely on compliance with

applicable permit criteria. Council of the Lower Keys v. Toppino, 429 So.2d 67

(Fla. 3d DCA 1983).

70. "Reasonable assurances" must be viewed in context with the potential

harm to the natural resources. The requirement that an applicant provide

"reasonable assurances" does not mean an applicant must provide an absolute

guarantee that the applicable standards and criteria will not be violated.

Halloran v. U.S. Department of the Navy, DOAH Case No. 92-6254, (Recommended

Order entered May 14, 1993; SFWMD Final Order entered June 17, 1993; FLAWAC

Final Order entered September 30, 1993).

71. Chapter 373, Florida Statutes, and Chapter 40D-4, Florida

Administrative Code, set forth the applicable conditions for issuance of permits

for surface water management systems. Specific permitting criteria are

contained in Section 40D-4.301, Florida Administrative Code. Nothing in Chapter

373, Florida Statutes, or Chapter 40D-4, Florida Administrative Code, prohibits

the introduction of treated wastewater into a surface water management system.

72. Chapter 62.610, Florida Administrative Code, which is administered by

the Department of Environmental Protection, governs the use of treated

wastewater for irrigation. The rules specifically allow the storage of treated

wastewater in golf course ponds. Rule 62-610.465(4), Florida Administrative

Code. Further, treated wastewater may be used to irrigate areas accessible to

the public, including residential lawns and golf courses. Rule 62-610.450,

Florida Administrative Code.

73. Proof of ownership or control of the land where a surface water

management system will be located is a condition for issuance of a permit.

Information regarding the ownership or control and the legal availability of the

receiving water system is required as part of the contents of an application

under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code.

74. State water quality standards do not have to be met within a

stormwater lake, itself.

75. Chapter 40D-4, Florida Administrative Code, does not require that the

District determine whether a surface water management permit application

complies with the permitting requirements of other public agencies. See

Recommended Order, Wiregrass Ranch, Inc. v. Saddlebrook Resorts, Inc., DOAH

Case No. 91-3658, entered March 31, 1992, at pages 23-4. Rule 40D-4.301(1)(i),

Florida Administrative Code, is satisfied by the presence of Limiting Condition

No. 3 and Standard Condition No. 3 of the permit.

76. Were it not for the overlooked retention pond to the northwest of Lake

7, the Club would have met its burden of proving by a preponderance of the

evidence that, subject to certain conditions, its proposed surface water

management system would comply with all criteria set forth in Chapter 373,

Florida Statutes, and Rule 40D-4.301, Florida Administrative Code. The

conditions would include: (1) the conditions in the Districts' notice of

intent to issue the permit; (2) a requirement that, if the state circuit court

determines in the pending litigation that the easterly boundary of the "A"

parcels lies to the east of the "top of bank," the Club modify any permit

issued, as necessary, so as to insure that the designed "spread" of Lake 7 in a

storm event up to and including a 100-year storm event does not encroach on the

Petitioners' property; and (3) a requirement that, after modification of the

control structure, the Club monitor the water level in Lake No. 7 on a daily

basis, using staff gauges, and modify the permit if such monitoring indicates

that the seasonal high water level exceeds 31.0', for example by reducing the

level at which reuse water is introduced into the lake or by requiring water

quality monitoring at the point of discharge to receiving waters.

77. However, as to the overlooked retention pond to the northwest of Lake

7, the Club did not meet its burden of proof. The Club gave no assurances that

the modifications to the Club's application will not result in flooding of

properties adjacent to the pond, or that the Club owns or controls the retention

pond or the properties adjacent to it that might be affected by flooding that

might result from the modifications to the Club's application.

RECOMMENDATION

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

recommended that the Southwest Florida Water Management District enter a final

order denying the Club's amended application.

RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida.

___________________________________

J. LAWRENCE JOHNSTON

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 19th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993),

the following rulings are made on the parties' proposed findings of fact:

Petitioners' Proposed Findings of Fact.

1.-2. Accepted and incorporated.

3. Accepted and incorporated to the extent not subordinate or unnecessary.

However, there was other evidence from which it can be determined that Lake 7 is

part of the Club's lease.

4. Accepted and incorporated. However, there was other evidence from

which it can be determined that Lake 7 is part of the Club's lease and from

which the western extent of the Club's leasehold interests in Lake 7 can be

determined.

5. Accepted and incorporated. But the topographic survey, together with

other evidence, does show the eastern extent of the Petitioners' property in

relation to the "top of bank" of Lake 7 and the western extent of the Club's

leasehold interests in Lake 7.

6. Rejected as contrary to the greater weight of the evidence that uses

must be "specifically authorized" in that the lease authorizes the use of the

premises for a "golf course," which is presumed to include uses inherent to the

operation of a golf course that may not be further specified in the lease, such

as drainage facilities, like Lake 7, and facilities for irrigation of the golf

course. Otherwise, accepted and incorporated to the extent not subordinate or

unnecessary.

7. Rejected as contrary to the greater weight of the evidence.

8. Accepted but subordinate and unnecessary.

9. Rejected as contrary to the greater weight of the evidence that the

Club does not pay for the maintenance of Lake 7, at least as between the Club

and its lessor, which is the subject of the pertinent lease provision. (There

was evidence as to a dispute between the Club and the Petitioners, or at least

some of them, as to who is responsible for maintenance of land in the vicinity

of the western extent of Lake 7 and the eastern extent of the Petitioners'

property.

10. Rejected as contrary to the greater weight of the evidence.

11. Rejected as contrary to the greater weight of the evidence to the

extent that there are "A" parcels between lots 115 through 120 and Lake 7.

Otherwise, accepted and incorporated.

12. Accepted and incorporated.

13. Not clear whether all of the activities listed in the second sentence

are done in the entire area up to the water's edge but, otherwise, accepted and

incorporated.

14. Accepted, but subordinate to facts contrary to those found, and

unnecessary.

15. Accepted; subordinate to facts found.

16. Rejected. The intent of the parties is not clear and is the subject

of litigation in state circuit court.

17.-18. Accepted that some probably used the words "to the water's edge";

others may have said "to the lake" or "to the approximate high water line."

Regardless of what they said, the legal consequences are being litigated in

state circuit court. Subordinate to facts contrary to those found, and

unnecessary.

19.-20. Accepted and incorporated to the extent not subordinate or

unnecessary..

21. Last sentence, accepted but subordinate and unnecessary. The rest is

rejected as contrary to the greater weight of the evidence.

22. Accepted but subordinate and unnecessary. The evidence was sufficient

to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on

the Alberti boundary survey that was attached to the individual deeds to all of

the "A" parcels, in relation to the "top of bank" of Lake 7 and other

topographical features depicted on Exhibit M-16. The 0.679 acre total for the

"A" parcels was merely transcribed from the Alberti boundary survey (probably

incorrectly, as the boundary survey seems to indicate the acreage to be 0.674,

plus or minus.)

23. Rejected as contrary to the greater weight of the evidence. The

modification itself would not cause the water level to rise. If, due to the

combined influence of all the pertinent factors, the water level in Lake 7

rises, it will spread more than before the modifications, up to a maximum spread

of approximately ten feet.

24. Rejected as contrary to the greater weight of the evidence. The Club

gave reasonable assurances that the spread would be contained within its

leasehold interest. However, consideration would have to be given to modifying

the permit if the state circuit court determines in the pending litigation that

the easterly boundary of the "A" parcels lies to the east of the "top of bank."

25. Accepted and incorporated to the extent not conclusion of law.

26. Accepted. Self-evident and unnecessary.

27. Accepted and incorporated.

28. Accepted, but subordinate, and unnecessary.

29. Accepted and incorporated.

30. Rejected as contrary to the greater weight of the evidence. It does

not prohibit it; it just does not authorize it. It provides that authorization

may be obtained by permit modification.

31. Accepted and incorporated to the extent not subordinate or

unnecessary.

32.-36. Accepted but subordinate and unnecessary. (Evidence was presented

at final hearing.)

37. Rejected as contrary to the greater weight of the evidence that

discharges will be "likely." (Accepted and incorporated that no discharges are

expected as a result of storm events up to and including a 100-year storm event

unless preceding conditions predispose the system to discharge during a 100-year

storm event.)

38.-39. Accepted but subordinate and unnecessary. (As for 39., very

little construction will be required for the proposed project.)

40. Rejected as contrary to the greater weight of the evidence. First,

Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a

half inch will be added. Second, it is not clear that the Ardaman report

established an "artificially low seasonal high water level." (There is a

hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman

report assumed no flow into or out of Lake 7; it also assumed no pumpage into or

out of the lake.)

41. Rejected as contrary to the greater weight of the evidence that it is

based "solely" on that assumption. Accepted and incorporated that it is based

on that and on other assumptions.

42. Accepted and incorporated.

43. Accepted but subordinate and unnecessary. (Evidence was presented at

final hearing.)

44. Rejected as not supported by evidence.

45. Rejected as contrary to the greater weight of the evidence to the

extent that the impact is obvious--the water level in the pond will be

approximately equal to the water level in Lake 7.

46. Rejected as contrary to the greater weight of the evidence. The

modification itself would not cause the water level to rise. If, due to the

combined influence of all the pertinent factors, the water level in Lake 7

rises, so will the water level in the pond.

47.-48. Accepted and incorporated.

49.-50. Accepted but subordinate and unnecessary.

51.-52. Accepted and incorporated.

Respondents' Proposed Findings of Fact.

1.-7. Accepted and incorporated.

8. Rejected as contrary to the greater weight of the evidence in that

there was more to the application than just substitution of reuse for well

water.

9.-10. Accepted and incorporated.

11. Accepted and incorporated to the extent not subordinate or

unnecessary.

12.-22. Accepted and incorporated.

23. Rejected as not proven. (The two District witnesses disagreed.) Even

if true, subordinate to facts contrary to those found.

24. Accepted and incorporated.

25. Accepted and incorporated to the extent not subordinate or

unnecessary, or conclusion of law.

26. Accepted and incorporated.

27. Accepted and incorporated to the extent not conclusion of law.

28.-29. Accepted; subordinate to facts found, and in part conclusion of

law.

30. Accepted. First sentence, incorporated; second sentence, subordinate

to facts found, and in part conclusion of law.

31.-35. Accepted and incorporated to the extent not subordinate or

unnecessary, or conclusion of law.

36. Accepted and incorporated.

37. Accepted and incorporated to the extent not subordinate or

unnecessary, or conclusion of law.

38. Accepted but subordinate to facts contrary to those found.

39.-40. Accepted and incorporated to the extent not subordinate or

unnecessary.

41.-43. Accepted and incorporated.

44. Accepted and incorporated to the extent not conclusion of law.

45. Last sentence, accepted and incorporated to the extent not conclusion

of law; rest, accepted but subordinate to facts contrary to those found, and in

part conclusion of law.

46. Accepted and incorporated to the extent not subordinate or

unnecessary.

47. Accepted, but subordinate, and unnecessary.

48. Accepted and incorporated.

49. First sentence, accepted but subordinate to facts contrary to those

found; second sentence, accepted and incorporated to the extent not conclusion

of law.

50. Accepted and incorporated to the extent not subordinate or

unnecessary.

51.-52. Accepted and incorporated.

53.-55. Accepted, but subordinate to facts found, and unnecessary.

56. Accepted and incorporated.

57.-62. Accepted and incorporated to the extent not subordinate or

unnecessary.

63. Accepted and incorporated to the extent not conclusion of law.

COPIES FURNISHED:

Patricia A. Petruff, Esquire

D. Robert Hoyle, Esquire

Dye & Scott, P.A.

1111 Third Avenue West

Bradenton, Flroida 34206

Mary F. Smallwood, Esquire

Ruden, Barnett, McClosky, Smith,

Schuser & Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301

Mark F. Lapp, Esquire

Assistant General Counsel

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Peter G. Hubbell

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Edward B. Helvenston,Esq.

General Counsel

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Southwest Florida Water Management

District written exceptions to this Recommended Order. All agencies allow each

party at least ten days in which to submit written exceptions. Some agencies

allow a larger period within which to submit written exceptions. You should

consult with the Southwest Florida Water Management District concerning its

rules on the deadline for filing exceptions to this Recommended Order.

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

AGENCY FINAL ORDER

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

BEFORE THE GOVERNING BOARD OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

ORDER NO. SWF-95-56

JOHN and MAUREEN HIGGINS, LOUIS

and BETTY MITCHELL, WILLIAM and

JUNE SPENCE, ROBERT and LEE WERNER,

DON and HALINA BOGDANSKE, CHARLES

and ROSEMARY BIONDOLILLO, IGNATIUS

and JUDITH BERTOLA, and GEORGE and

DOROTHY HOLLY,

Petitioners,

vs. DOAH CASE NO. 95-2196

MISTY CREEK COUNTRY CLUB, INC. and

SOUTHWEST FLORIDA WATER MANAGEMENT

DISTRICT,

Respondents.

_____________________________________/

FINAL ORDER

THIS CAUSE was heard by the Governing Board of the Southwest Florida Water

Management District (the District) pursuant to Section 120.57, Florida Statutes

(F.S.), for the purpose of considering the Recommended Order of the Hearing

Officer and the exceptions filed by the Petitioners, JOHN and MAUREEN HIGGINS,

LOUIS and BETTY MITCHELL, WILLIAM and JUNE SPENCE, ROBERT and LEE WERNER, DON

and HALINA BOGDANSKE, CHARLES and ROSEMARY BIONDOLILLO, IGNATIUS and JUDITH

BERTOLA, and GEORGE and DOROTHY HOLLY (the Petitioners) and by Respondent, MISTY

CREEK COUNTRY CLUB, INC. (the Club), and for the purpose of issuing a Final

Order in the above styled proceeding.

On October 19, 1995, the Hearing Officer issued his Recommended Order, a

copy of which is attached hereto as Exhibit "A". Pursuant to Section

120.57(1)(b)9, F.S., and Rule 40D-1.564, Florida Administrative Code, the

parties were entitled to submit written exceptions to the Recommended Order

within 15 days of the date of the Recommended Order. On November 3, 1995, the

Petitioners and the Club separately filed exceptions to the Recommended Order.

The Governing Board has reviewed the Recommended Order and all exceptions

thereto and finds that it can address each exception in the manner set forth in

the Findings on Exceptions to Recommended Order, attached hereto as Exhibit "B".

Those preliminary portions of the Recommended Order regarding date and

place of hearing, appearances entered at the hearing, statement of the issue and

preliminary statement are hereby adopted and incorporated by reference, with the

following changes:

1. There is a typographical error in the preliminary statement, first

paragraph, eighth line where the numbers 30.05' and 31.0' are given. The first

elevation should read "30.5'". See Finding of Fact No. 8.

2. In the preliminary statement, page 3, third full paragraph, second

line, the list of exhibits should include M-20.

FINDINGS OF FACT

The Governing Board hereby adopts and incorporates by reference Findings of

Fact Nos. 1 through 65 from the Recommended Order, with one exception. That

portion of Finding of Fact No. 15 which states that the drawing of the float

valve structure that the Club provided to the District was "as permitted by the

Department of Environmental Protection" is not based upon competent substantial

evidence and is therefore rejected.

CONCLUSIONS OF LAW

The Governing Board hereby adopts and incorporates by reference Conclusions

of Law Nos. 66-77 of the Recommended Order.

WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law,

it is hereby ordered that Surface Water Management Permit Application No.

400037.05 for Misty Creek Country Club, Inc. be denied, without prejudice to re-

apply to address "the overlooked retention pond".

DONE and ORDERED by the Governing Board of the Southwest Florida Water

Management District this 28th day of November, 1995, in Brooksville, Hernando

County, Florida.

By:____________________________

Joe L. Davis, Jr., Chairman

Attest:____________________________

Sally Thompson, Secretary

(Seal)

Filed this 29th day of

November, 1995.

________________________

Louise Regsby

Agency Clerk

COPIES FURNISHED:

Patricia A. Petruff, Esquire

Dye & Scott, P.A.

P.O. Box 9480

Bradenton, Florida 34206

Attorney for Petitioners

Mary F. Smallwood, Esquire

Ruden, McClosky, Smith, Schuster & Russell, P.A.

P.O. Box 10888

Tallahassee, Florida 32302

Attorney for Misty Creek Country Club, Inc.

Mark F. Lapp, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609

Attorney for the District