97-005978 Richard L. Silvani, Dick W. Thompson, James E. And Marilyn Bates, Joyce Menzie, James M. Gibson, Claudia C. Munsell, Mr. And Mrs. Phillip E. Durst, Donald R. Sosnoshr, Mr. And Mrs. Robert L. Nelson, And Mrs. Richard Ladow vs. Southwest Florida Water Management District And Hernando County Status: Closed Recommended Order on Monday, June 8, 1998.

Summary: County gave reasonable assurances that rule criteria for construction permit met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD L. SILVANI; DICK W. )

THOMPSON; JAMES E. AND )

MARILYN BATES; JOYCE MENZIE; )

JAMES M. GIBSON; CLAUDIA C. )

MUNSELL; MR. AND MRS. PHILLIP )

E. DURST; DONALD R. SOSNOSHR; )

MR. AND MRS. ROBERT L. )

NELSON; and MRS. RICHARD )

LADOW, )

)

Petitioners, )

)

vs. ) Case No. 97-5978

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

HERNANDO COUNTY, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on March 17 and

April 6, 1998, in Brooksville, Florida, by Donald R. Alexander,

the assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Chester L. Bradshaw

(Qualified Representative)

18520 Bradshaw Road

Dade City, Florida 33523

For Petitioner: Richard L. Silvani, pro se

( Silvani) 24419 Lanark Road

Brooksville, Florida 34601

For Respondent: Margaret M. Lytle, Esquire

( SWFWMD) 2379 Broad Street

Brooksville, Florida 34609-6899

For Respondent: R. Bruce Snow, Esquire

(County) William Buztrey, Esquire

20 North Main Street, Room 462

Brooksville, Florida 34601

STATEMENT OF THE ISSUE

The issue is whether Hernando County's application for an

environmental resource permit authorizing the construction of a

new surface water management system to serve a 7.85 acre drainage

system improvement three miles southeast of Brooksville, Florida,

should be approved.

PRELIMINARY STATEMENT

This case began on September 29, 1997, when Respondent,

Southwest Florida Water Management District, gave notice that it

intended to issue an environmental resource permit to Respondent,

Hernando County, authorizing the construction of a new surface

water management system three miles southeast of Brooksville,

Florida. Petitioners, Richard L. Silvani, Dick W. Thompson,

James E. and Marilyn Bates, Joyce Menzie, James M. Gibson,

Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R.

Sosnoshr, Mr. and Mrs. Robert L. Nelson, Mrs. Richard Ladow, and

George Goff, all property owners in the area of the project,

thereafter filed a Petition for Informal Hearing seeking to

contest the proposed agency action. The petition generally

contended that the permit application "contain[ ed] possible

miscalculations of design," which would exacerbate existing flood

problems in a number of respects. The petition further alleged

that the County lacked easements for surface water storage. The

petition was treated as a petition for a formal hearing and was

referred by the agency to the Division of Administrative Hearings

on December 23, 1997, with a request that an Administrative Law

Judge be assigned to conduct a hearing. On February 26, 1998,

George Goff filed a Notice of Withdrawal, in which he withdrew

from participation in the case.

By Notice of Hearing dated February 14, 1998, a final

hearing was scheduled on March 17, 1998, in Brooksville, Florida.

A continued hearing was held on April 6, 1998, at the same

location.

At final hearing, the agency's Motion in Limine and Motion

That Facts be Taken as Established and For Other Relief were

denied. All Petitioners except Richard L. Silvani were

represented by Chester J. Bradshaw, a qualified representative,

while Silvani represented himself. Petitioners presented the

testimony of Chester J. Bradshaw, James M. Gibson, Dick W.

Thompson, Marilyn Bates, Joyce Menzie, Jane Durst, Diane Nelson,

Richard L. Silvani, and Julie Ann Defoe. Also, they offered

Petitioners' Exhibit 1 and Silvani Exhibits 1 and 2. All

exhibits were received in evidence. Hernando County presented

the testimony of Charles D. Mixon, County Engineer and accepted

as an expert in professional engineering; and Dale E. Cromwell,

an engineering consultant and accepted as an expert in

professional engineering. Also, it offered County Exhibits 1 and

2. Both exhibits were received in evidence. The Southwest

Florida Water Management District presented the testimony of

C. Clay Black, a professional engineer and accepted as an expert

in the design of surface water management systems and

environmental resource permitting; and Julie Ann Defoe, an

environmental scientist and accepted as an expert in wetlands and

environmental resource permitting. Also, it offered District

Exhibits 1-9. All exhibits were received in evidence.

The transcript of hearing (three volumes) was filed on

April 24, 1998. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

May 26, 1998. The same were jointly filed by Respondents, and

they have been considered in the preparation of this Recommended

Order. On May 28, 1998, Petitioners filed a document styled as

"Petitioners' Summary Request to Deny Permit," together with

copies of numerous documents apparently obtained from

Respondents' public records. The "Summary Request to Deny

Permit" has been treated as a proposed order and has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. Petitioners, Richard J. Silvani, Dick W. Thompson,

James E. and Marilyn Bates, Joyce Menzie, James M. Gibson,

Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R.

Sosnoski, Mr. and Mrs. Robert L. Nelson, and Mr. and Mrs.

Richard Ladow (Petitioners), are property owners in central

Hernando County, Florida. Respondent, Southwest Florida Water

Managment District (District), is the state agency charged with

the responsibility of issuing Environmental Resource Permits

( ERP) within its jurisdictional boundaries. Respondent, Hernando

County (County), is a local government seeking the issuance of a

permit for the purpose of alleviating drainage and flooding

problems in a subdivision known as High Point Gardens in the

central part of the County.

2. On June 11, 1997, the County filed an application with

the District seeking authorization to construct a low earthen

berm to help control flooding in High Point Gardens, an eighty-

five unit residential subdivision. On September 29, 1997, the

District gave notice of its intention to issue ERP No. 449342.01

authorizing the "construction of a new surface water management

system to serve a 7.85 acre drainage system improvement known as

the Hernando County - High Point Gardens Drainage Improvements."

The project is located off Sun Hill Lane, three miles southeast

of Brooksville, Florida, in central Hernando County.

3. On an undisclosed date, but in a timely fashion,

Petitioners filed their Petition for Informal Hearing challenging

the issuance of the permit. As grounds, Petitioners alleged that

the permit application contained "possible miscalculations of

design" which would "alter the natural water flow route";

"adversely affect several acres of natural wetlands by changing

hydrology of surface area"; "adversely affect adjacent uplands by

innundating forest areas never before flooded by heavy rainfall";

"not guarantee 100% flood protection to the few affected homes";

and "create flood problems to adjacent homes and property by

diverting stormwater from natural flow (north) to area east of

'proposed' retention area." The petition further alleged that

the "'proposed' area should not be normal recepient [sic] of

excess water from Cedar Falls subdivision" and that "all affected

properties are not owned or easements acquired by Hernando County

for surface water storage." The filing of the petition prompted

the initiation of this proceeding.

B. The Permit

4. The High Point Gardens subdivision, which lies within

the Bystre Lake Basin, is a "relatively old subdivision," having

been built around the 1970's. There is a low area in the middle

of the subdivision, and it has "[s] everal sinks with a natural

drainage within the area." Because the thirty-square-mile basin

is a closed drainage basin, with no natural outflows,

"significant" flooding problems have been present throughout the

basin since at least the 1980's.

5. In an effort to resolve flooding problems within the

basin, the County and District jointly sanctioned a study by a

consulting firm, Dames and Moore, to provide suggested

alternative actions to correct the problem. The firm's first

interim report was rendered on August 5, 1988, and a final report

known as the Bystre Lake Stormwater Management Master Plan was

rendered in August 1989.

6. Among other things, the consultant's report recommended

that a berm be constructed to relieve the flooding in the High

Point Gardens' area. Acting on the report, the County obtained a

construction permit from the District in August 1991 in

accordance with the consultant's recommendation, but construction

on the project was not commenced prior to the permit expiring in

1994. Although the consultant's report was the genesis for the

first permit, the plans and specifications for the new berm have

been modified by engineers after further study and review. It is

noted that the total land area of the project will be less than

100 acres.

7. The High Point Gardens subdivision lies within sub-basin

304 of the basin. Under the new proposal, water which now comes

into sub-basins 304 and 406 from sub-basins 305 and 306 will be

stored in those latter sub-basins. The requested permit would

authorize the County to construct a low earthen berm along the

western side of sub-basin 406 and the southern boundary of sub-

basin 304 to help control flooding in the subdivision. The

proposed berm will range from one to five feet in height and

extend some 3,250 feet, or approximately six-tenths of a mile.

It will range from eight to ten feet in width with a side slope

of 4 to 1.

8. The berm will impound water upstream of the berm to an

elevation of 90.5 NGVD, which is 1.5 feet higher than the water

would rise in the area under natural conditions. The water will

be stored in two natural ponds which are now located in the

project area. Once the water reaches an elevation of 90.5 NGVD,

which will occur only during an event exceeding a 25-year storm

event, three overflow structures will become operative and are

designed to mimic the natural water flows of the area.

9. After the berm is constructed, all basins "downstream"

of the berm, including sub-basins 304, 405, and 406, will have

"significantly lower flood elevations than the 10, 25 and 100-

year storm event." That is to say, existing flooding to the

north and east of the proposed berm will be lessened. To the

extent that additional impoundment of water behind the berm will

occur, or flooding beyond the berm may occur during a 100-year

storm event, the County will acquire easements from local

property owners to store the additional water. Until the

aquisition of land occurs, construction cannot begin.

10. There is one already disturbed wetland area near the

proposed construction area. No mitigation is required, however,

since the impact will be temporary and the area is expected to

naturally revegetate itself. There will be no adverse impacts to

fish, wildlife, or adjacent wetlands. Neither will the project

create any other environmental concerns. While there will be

some impact to upland trees caused by the impounded water, under

existing District rules, that impact cannot be used as a basis to

deny the permit.

11. Based on generally accepted engineering principles, the

project is capable of being effectively performed and can

function as proposed. Also, the project can be effectively

operated and maintained. The County has the resources to

undertake the project in accordance with the terms and conditions

of the permit.

12. The greater weight of credible and persuasive evidence

supports a finding that the County has given reasonable

assurances that all applicable criteria for the issuance of a

permit have been met.

C. Petitioners' Objections

13. At hearing, Petitioners contended that the overflow

structures for the berm would alter the natural flow of water,

and increase the flow of water to the east of the proposed

project, where several Petitioners reside. As previously noted,

however, the more credible evidence shows that the project will

not increase the natural flow of water to the east of the berm.

More specifically, expert testimony demonstrated that the regular

flow through each weir in the post-development condition will not

be adversely greater than what occurred during the pre-

development condition.

14. Petitioners also contended that the wetlands will be

negatively impacted by the project. Contrary expert testimony by

witness Defoe established, however, that there will be no

permanent adverse impacts to wetlands, fish, or wildlife if the

permit is approved.

15. Petitioners next contended that the process was flawed

because very few on-site inspections of the project area were

made by District and County personnel, especially during the

rainy season, before the application was preliminarily approved.

There were, however, on-site inspections by District and County

staff and consultants, and it was not shown that the lack of

additional inspections affected the validity of their studies.

16. A further contention was made at hearing that the

information supporting the application was insufficient and that

more study, including soil boring tests, should have been made.

As to additional soil boring tests, the evidence shows that it is

not a common engineering practice to perform soil testing

throughout the entire area that will be submerged. Therefore,

the existing tests were adequate to support the engineering

assumptions. Further, even if there were some infirmities in the

data and assumptions used and made in the 1989 Dames and Moore

report, as alleged by Petitioners, the errors or omissions were

minor, they were subject to later refinement by professional

engineers, and they did not materially affect the overall

validity of the current application. Finally, the application

file contains uncontradicted technical information supporting the

issuance of the permit.

17. Petitioners' other concerns, while sincere and well-

intended, are not relevant to the permitting process. For

example, a concern that the construction of a berm will decrease

nearby property values, even if true, is not a consideration in

the permitting process. Similarly, Petitioners' valid concern

that some nearby upland trees will be damaged if water levels

rise for a prolonged period of time is not a basis under existing

District rules to deny the permit. At the same time, whether the

project is cost-effective and the best alternative for

alleviating flooding conditions in the area are political

decisions for the County, and thus they are not in issue in this

proceeding.

18. Finally, Petitioners have pointed out that the County

has not completed acquisition of the necessary easements for the

project, and that until this is done, a permit should not issue.

However, the District has specifically provided as a condition

precedent to any construction work that the County finalize

ownership or control for all property where water levels will be

raised by the project.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

20. As the party seeking a permit, the County bears the

burden of proving by a preponderance of the evidence that the

application should be granted. Dep't of Transportation v. J.W.C.

Co., Inc. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981).

21. In order to show entitlement to a permit, the County

must give reasonable assurances that the permitting criteria in

Rules 40D-4.301, 40D-4.302, and 40D-40.302, Florida

Administrative Code, have been satisfied. By a preponderance of

the evidence, this burden has been met.

22. The existence of possible alternative projects, the

project's cost effectiveness, the possible adverse impacts to

upland tree species, and the potential for a decrease in the

value of adjacent property, while well-intended concerns on the

part of Petitioners, are not criteria which may be considered by

the District in the permitting process. See , e . g ., Council of

the Lower Keys v. Toppino , 429 So. 2d 67 (Fla. 3d DCA 1983).

This being so, the application should be granted.

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 granting Hernando County's

application for Standard General Environmental Resource Permit

No. 449342.01.

DONE AND ENTERED this 8th day of June, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

DONALD R . ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone], SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June, 1998.

COPIES FURNISHED:

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Chester Bradshaw

18520 Bradshaw Road

Dade City, Florida 33523

Richard L. Silvani

24419 Lanark Road

Brooksville, Florida 34601

Margaret M. Lytle, Esquire

2379 Broad Street

Brooksville, Florida 34609-6899

Robert Bruce Snow, Esquire

20 North Main Street, Room 462

Brooksville, Florida 34601

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this

Recommended Order within fifteen days. Any exceptions to this

Recommended Order should be filed with the Southwest Florida Water

Management District.