98-002184 John Workman vs. Chuck Emling And Department Of Environmental Protection Status: Closed Recommended Order on Monday, May 10, 1999.

Summary: Respondent showed reasonable assurance that standards of Chapter 62-25, Florida Administrative Code, regarding storewater management and treatment would be met because of compliance with the on-site containment criteria for general permits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN WORKMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-2184

)

CHUCK EMLING and STATE OF FLORIDA, )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________________)

RECOMMENDED ORDER

This cause came on for formal proceeding before P. Michael

Ruff, Administrative Law Judge of the Division of Administrative

Hearings. Pursuant to notice a final hearing was conducted on

January 15, 1999, in Pensacola, Florida.

APPEARANCES

For Petitioner: M. J. Menge, Esquire

Shell, Fleming, Davis & Menge, P.A.

Seville Tower

Post Office Box 1831

Pensacola, Florida 32596

For Respondent Chuck Emling:

Alan B. Bookman, Esquire

Emmanuel, Sheppard & Condon

Post Office Drawer 1271

Pensacola, Florida 32596

For Respondent Department of Environmental Protection:

Ricardo Muratti, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

a modification of a general permit should be issued by the

Respondent agency Department of Environmental Protection

(Department), to the Respondent, Chuck Emling, so as to allow

construction and operation of a stormwater discharge facility on

Emling's property in Gulf Breeze, Florida.

PRELIMINARY STATEMENT

The Respondent, Chuck Emling, owns a parcel of property in

Santa Rosa County Florida, located along the southern right-of-

way boundary of U.S. Highway 98. He is in the process of

constructing a recreational center or "sports complex" to be

known as the Gulf Breeze Sports Complex ("Club Property"). The

property is bordered on the west by Crane Cove Boulevard and on

the east by property owned by the Petitioner, John Workman and

members of his family. Mr. Workman operates an automotive repair

shop on the northern portion of his property and resides in a

home on the southern portion of it.

On or about October 23, 1997, Mr. Emling applied for and was

issued a general permit by the Department for the construction of

a new stormwater discharge facility on the subject property.

Under prevailing law, specifically Rule 62-25.801, Florida

Administrative Code, a general permit is automatically granted,

without notice to any other persons or entities, for stormwater

discharge facilities, as pertinent hereto, which have drainage

areas of less than 100 acres and which provide retention or

detention, with filtration, of the first one-half inch of run-

off. No notice of this application was sent to the Petitioner or

adjoining property owners or published in the local newspaper

because such is not legally required.

Mr. Emling desired to modify the design of his sports

facility and the attendant stormwater discharge or management

portion of the facility and thus filed an application for a

modification of his general permit on or about March 12, 1998.

This reflected substantial changes to the stormwater management

plan previously filed with the Department. The retention areas,

for instance, were reduced from some 301,787 cubic feet to

approximately 97,110 cubic feet.

Upon receipt of the application for modification the

Department provided the Petitioner with notice of the

application. The Petitioner timely filed a Petition for

Administrative Proceeding with the Department and on May 11,

1998, the Department requested assignment of an Administrative

Law Judge to conduct all necessary proceedings. This proceeding

and hearing ensued.

The Department presented the testimony of James Sherrouse,

an engineer with the Department and presented six exhibits which

were admitted into evidence at the hearing. The Respondent, Mr.

Emling, presented the testimony of Jay Baynes, a civil engineer

with the engineering firm providing professional engineering

assistance for Emling's project and presented one exhibit which

was admitted into evidence. The Petitioner presented the

testimony of John Broxson and Charles Merritt, who had observed

the project property and the Workman property over a long period

of time and were familiar with the natural flow of stormwaters

over those properties. The Petitioner also testified and adduced

the testimony of Leland Empie, a certified land surveyor who had

performed surveying work for the Petitioner on a the subject

properties and in the vicinity. The Petitioner also presented

the testimony of Charles Meister, a civil engineer retained by

the Petitioner to review the plans and calculations submitted by

the applicant, as well as the testimony of Mr. Sherrouse the

Department's engineer. The Petitioner presented eight exhibits

which were admitted into evidence.

Upon the conclusion of the proceeding the parties requested

that it be transcribed. They requested an opportunity to submit

proposed recommended orders which have been timely submitted and

considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Respondent Chuck Emling, intends to build a sports

complex, herein known as the "Club Property." He obtained a

general stormwater discharge facility permit therefor, since his

property represents a drainage area of approximately 10 acres in

size, well under the threshold of 100 acres or less by which a

general permit may be granted and because he proposes to

construct and operate the facility such as to retain the first

one-half inch of run-off. Because his plans for the sports

complex and attendant stormwater discharge facility changed he

applied for a modification of that general permit, which was duly

noticed by the Department and protested by the Petitioner herein.

The Petitioner is concerned that overflow from the retention

areas will be channeled onto his property and that the berm at

the northeast corner of the project site will cause natural

stormwater flow to be diverted onto Workman's property which

formerly flowed across Mr. Emling's property. The Petitioner

contends that a landowner, such as the applicant, may not

construct a berm along the borders of his property to prevent

surface waters that would otherwise naturally flow onto his

property from doing so, under generally accepted principles of

real property law. 1

2. The Department is an agency of the State of Florida

charged, as pertinent hereto, with authority to regulate

stormwater discharge facility construction, design and operation,

pursuant to the legal authority cited herein.

3. The proposed project is approximately ten acres in size

and the project is expected to exceed all required standards for

stormwater retention. The facility, as proposed in the

modification application, will store approximately 18,254 cubic

feet of run-off water and percolate it through its retention

system within approximately seventy-two hours. The modified

facility will store between 97,000 and 110,000 cubic feet of

stormwater for percolation which is approximately five times

greater than that required by regulations contained in Chapter

62-25, Florida Administrative Code, concerning storage of one-

half inch of run-off, if the drainage area served by the

stormwater facility is 100 acres or less. The subject project

site is approximately 10 acres in size.

4. Prior to development of the Club Property, an

"equalization pipe" ran under Crane Cove Boulevard providing for

run-off of stormwater which was in excess of the amount that

could be retained in the low-lying area immediately to the west

of Crane Cove Boulevard and the Club Property. This was designed

to allow such excess water to flow back onto the Club Property as

well as to allow stormwater run-off on the Club Property to the

east to reach the inlet of the equalization pipe to flow westward

into the depressed area to the west of Crane Cove Boulevard. In

other words, flow was permitted in both an easterly and westerly

direction to equalize excess stormwater on both properties and to

permit continuance of the historic east-to-west flow of

stormwater over the land surface of the properties involved

herein, after the installation of the obstacle consisting of

Crane Cove Boulevard. Installation of the pipe and Crane Cove

Boulevard occurred before the installation of the berms around

the boundary of the applicant's property which are a part of the

subject project.

5. The equalization pipe under Crane Cove Boulevard has now

been connected to an extended pipe running under the Club

Property all the way to the boundary of the Club Property which

joins the Workman property. Some surface waters that

historically and naturally flowed back onto the Club Property

from the depressed area to the west of Crane Cove Boulevard, if

that area flooded, and which are kept off the Club Property by

the berms, can now pass through the equalization pipe without

flowing onto or across the Club Property, which thus prevents the

stormwater facility proposed to be installed from treating off-

site stormwater. The pipe is supposedly sited and installed at

an elevation so as to allow discharge off the Club Property only

of stormwater in excess of the retention and treatment standard

sub judice , which is that the facility will retain on-site all

stormwater run-off resulting from less than a 100-year storm

event.

6. Thus, for this reason, there is little likelihood that

stormwater will be discharged onto the Workman property from this

pipe from the Club Property and the applicant's proposed

stormwater facility. It is also unlikely that stormwater will

traverse the equalization pipe and its extension to the boundary

of the Workman property from the west since, if the depressed

area lying west of Crane Cove Boulevard floods, the stormwater

collected there would more likely migrate westward since that is

the direction of natural flow.

7. The Petitioner's case, on direct and through cross-

examination, establishes two problems with the application for

permit modification as proposed. First, the elevation of the

weir on the eastern boundary of the Club Property, next to the

Workman property, which allows water to be discharged through the

pipe from the Club Property onto the Workman property, above a

certain level, is purportedly at a lower level than the

calculations provided by the applicant's engineers. Their

calculations indicate what they believe is necessary to retain

stormwater up to the volume of a

100-year storm event before it can spill onto the Workman

property. The Petition contends the calculations indicate that

the weir would thus have to be at an elevation of 19 feet to

retain stormwater to that level or volume, but the applicant's

plans and evidence show variously that the weir would be either

at 18.9 feet or at

18.3 feet.

8. Additionally, the modification plan increases the size

and configuration of the earthen berm around the northern end of

the Club Property, moving it more toward the outer northern

boundary along U.S. 98. The Petitioner demonstrated two problems

with the size, configuration and location of the berm in this

area of the property, that is the northern side of the Club

Property in the area where it joins the northwest portion and

boundary of the Workman property. First, the Department of

Transportation (DOT) drain structure in the highway right-of-way

of U.S. 98, at that point, is being subjected to siltation caused

by unstabilized earth eroding off the berm and toward and into

the drainage structure. This can cause downstream siltation

pollution as well as actual physical blockage of all or part of

the drainage capability of this structure. In addition to the

possible pollution hazard posed by this situation it can also

result in water ponding on the Workman property through impedance

of proper drainage. Additionally, the configuration, size and

location of the berm on the northeast corner and portion of the

applicant's property may cause "backing up" or ponding of water

on the Workman property. The erosion to the berm must be

stabilized properly and the berm should be so located and

configured near this northeast corner of the applicant's property

and the northwest corner of the Workman property and other

necessary steps taken so as to prevent the ponding of water onto

the Workman property. A grant of the permit should be so

conditioned.

9. The modification application proposes erosion control

measures, including sod and landscaping, to enhance and preserve

the stormwater system's integrity. During construction the

project and site will be protected from soil erosion and

sedimentation. Protective measures will include, as a minimum,

installing staked hay bales and silt and sediment fencing

downhill from any earth work activity, prior to the start of

construction. The project specifications require all soil

erosion and sedimentation to be controlled during construction

and retained on-site. The stormwater collection and treatment

system will require periodic maintenance for continued proper

operation, including removal of silt and debris from infiltration

areas and maintenance of vegetative cover. The grant of the

permit should be conditioned on these steps being strictly

followed, especially with regard to proper design and

configuration of any berm and sod of it, so as to prevent erosion

and resulting sedimentation into the DOT drainage and stormwater

treatment system consisting of the culverts and swales along

Highway 98. It is critical that those DOT structures and systems

be maintained in proper operating condition and not impeded by

construction and operation of the proposed project so as to

prevent the ponding of water on the adjacent property owners'

land.

10. The pre-development stormwater discharge rate for the

project site, as shown in Appendix D to DEP Exhibit 3, was 6.55

cubic feet per second. The proposed project will retain all

stormwater on-site with up to 100 percent of the volume caused by

a "100-year storm." This means that the proposed 24-foot weir

will be set at a minimum elevation of 18.3 feet, so that no

stormwater will be discharged from the site until it reaches at

least an elevation of 18.3 feet. It will discharge less than the

predevelopment amount of stormwater after that point or once the

surface water elevation in the retention system exceeds 18.3

feet. Thus the Club Property stormwater design will lessen the

impact on all properties to the east of the development, and to

the west as well, because all stormwater will be retained unless

it exceeds the volume of 100 percent of a 100-year storm falling

on the site area. Thus the pre-development discharge of 6.55

cubic feet per second will be entirely eliminated unless such a

storm intensity and volume is reached. Even if the pond were to

reach its maximum elevation, a discharge to the east towards

Workman's property would only be 6.44 cubic feet per second or

slightly under the pre-development discharge rate.

11. When the project is completed a "junction box" will be

placed at the end of the mitered end section of the 18-inch pipe

on the Club Property. The side discharge slot on that junction

box will be set at an elevation of 18.3 feet. Therefore, no

discharge from the Club site can flow toward Crane Cove Boulevard

to the west unless a storm event in excess of a 100-year storm

occurs, because only such an event would cause water to exceed

that elevation. Thus, by not otherwise discharging from the site

through the pipe the project will result in a lessening of any

previous impacts on properties both west and east of the subject

site from stormwater discharge.

12. The testimony of Mr. Leland Empie, a surveyor,

testifying for the Petitioner, contains discussion of a purported

wetlands area lying just west of the Club Property, across Crane

Cove Boulevard and south of Highway 98. That wetlands area, if

indeed it is a jurisdictional wetlands area, which was not

definitively established, is only approximately one and one-half

acres in size. Mr. Empie also postulated that there may be a

wetlands area on the Club Property but that could not be

definitively determined, as he admitted himself. He testified

that he saw no definitive indication of jurisdictional wetlands

on the project site and the area in question has been "cut and

filled" so it is difficult to determine the fact of existence of

any wetlands area on the Club Property. In any event, there has

been no showing that the subject project will discharge

stormwater to any wetland except possibly the wetland west of

Crane Cove Boulevard, assuming that it qualifies as a

jurisdictional wetland, which has not been proven. If that were

the case, the discharge would only occur at a volume and level in

the stormwater system which exceeds that of a 100-year storm. If

such a discharge occurs it will still be, as found above, at a

volume-per-day less than the historic run-off volume from the

subject property in its predevelopment stage.

13. In summary, no preponderant definitive evidence was

offered to prove that jurisdictional wetlands exist on the

project site. The Petitioner's surveyor witness, Mr. Empie,

relied on overlays of data from federal map sources to determine

the purported location of wetlands on a map but could not verify

the accuracy of the maps nor explain the difference in the manner

in which jurisdictional wetlands are determined by the Northwest

region of the Department versus the method used by the federal

agencies referenced in his testimony.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. See Sections 120.569 and 120.57(1), Florida Statutes

(1997).

15. If a development has the potential to discharge

stormwater it is subject to regulation by the Department in

accordance with Sections 403.061, and 403.814, Florida Statutes,

as well as Chapter 62-25, of the Florida Administrative Code.

Permitting jurisdiction over stormwater discharge facilities

derives from Sections 403.161, and 403.814, Florida Statutes, and

Rules 62-25.001, 62-25.801, and 62-4.530, Florida Administrative

Code.

16. The applicant has the burden of proving that it is

entitled to the modification of the general permit at issue in

this proceeding. See Department of Transportation vs. J.W.C.

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

Respondent, Mr. Emling, has offered a preponderance of evidence,

regarding the stormwater facility concerning its nature and scope

so as to support the proposed modification. The Respondent has

established that the project will meet all applicable stormwater

discharge criteria.

17. Pursuant to Rule 62-25.801(1)(b), Florida

Administrative Code, a general permit is granted to any person

for the construction and operation of a stormwater discharge

facility in a drainage area of less than 100 acres, which

provides retention of the run-off from the first one-half inch of

run-off. See also Rule 62-4.530(6), Florida Administrative Code.

It is established that retention of the first one-half inch of

run-off within 72 hours following the storm event in accordance

with Rule 62-25.025, Florida Administrative Code, will occur.

18. Section 62-25.801, Florida Administrative Code,

provides that a general permit is granted to any person for

construction and operation of a new stormwater discharge facility

which, in pertinent part, has a drainage area of less than 100

acres and provides retention, or detention with filtration of the

first one-half inch of run-off. There is no question that this

facility meets that standard. Consequently, it was entitled to

the general permit, which it received upon a showing that such

standard would be met, without having to comply with the other

notice and permit requirements of Chapter 62-25, Florida

Administrative Code. The Department deemed the filing of the

modification application a substantial enough modification, that

it required notice in accordance with prevailing law and an

opportunity for a point-of-entry for persons situated as the

Petitioner.

19. The Petitioner cites Rule 62-25.040, Florida

Administrative Code, containing the construction permit

requirements for stormwater discharge facilities, referencing the

"public interest" to be served by the discharge as one standard

applicable to this case and the other standard concerning whether

"best management practices" are proposed to be followed. The

preponderant evidence of the record shows that best management

engineering and other practices will be followed in the

construction and operation of the project, provided that the

above-referenced condition concerning siltation and erosion of

the bermed areas is monitored and attended to promptly and on a

regular basis. Siltation of DOT's storage and drainage

structures can cause Mr. Workman's fear of back-up of stormwaters

onto his property to be realized. Such an eventuality would also

violate the "public interest standard" in the above-cited rule.

The preponderant evidence shows at this point, however, that the

overall operation of the project, as now designed and proven at

hearing, will result in a net public interest benefit, because

less stormwater will be discharged on adjoining properties than

was formerly the case in the pre-development stage from the

subject project site. In fact, even if a 100-year storm event

occurs and the weir begins to discharge water off-site, an

unlikely event, the discharge will still be less than the normal

expected discharge volume from the Club Property in its former

pre-development stage. Thus, overall, the preponderant proof in

this case shows that the public interest will be positively

served by installation of the subject project provided it is

monitored in its construction phase and in its operation phase on

a regular basis to ensure that sedimentation, siltation,

vegetation cover and berm location and configuration are properly

maintained, controlled and executed as the case may be.

21. Moreover, and aside from the permitting standards in

that rule, it is provided in Rule 62-25.030, Florida

Administrative Code, "Exemptions," that new stormwater discharge

facilities are exempt from the notice and permit requirements of

Chapter 62-25, Florida Administrative Code, if they provide

retention or detention with filtration of the run-off from the

first one-half inch of stormwater if their drainage areas are

less than 100 acres. This circumstance describes the subject

project and therefore, in accordance with Rule 62-25.030(2)(b),

Florida Administrative Code, this project would appear to be

exempt from the construction permit requirements, aside from the

fact that under Rule 62-25.801, Florida Administrative Code, it

clearly qualifies for the underlying general permit, which is not

subjected to the notice requirements either. Thus it would

appear that, from a strictly legal standpoint, the public

interest standard and the best management practices standard, and

any of the other construction permitting standards do not apply

to this project.

22. Thus, the Respondent has established entitlement to the

permit modification requested.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is

RECOMMENDED:

That a final order be issued by the Department of

Environmental Protection approving the requested modification of

the Respondent-Applicant's stormwater discharge general permit in

the manner recommended and conditioned herein.

DONE AND ENTERED this 10th day of May, 1999, in Tallahassee,

Leon County, Florida.

P. MICHAEL RUFF

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 10th day of May, 1999.

ENDNOTE

1 / This proceeding may only encompass issues concerning whether

the statutes and agency rules governing stormwater facility

permitting, construction and operation are complied with. Aside

from matters involving the concept of the "Public Interest,"

dealt with in the Conclusions of Law below, it is the opinion of

the undersigned that any issues concerning "nuisance" or other

theory regarding such interference with the enjoyment of the

Petitioner's property rights are properly raised in the Circuit

Court.

COPIES FURNISHED:

M. J. Menge, Esquire

Shell, Fleming, Davis & Menge, P.A.

Seville Tower

Post Office Box 1831

Pensacola, Florida 32596

Alan Bookman, Esquire

Emmanuel, Shepard & Condon

Post Office Drawer 1271

Pensacola, Florida 32596

Ricardo Muratti, Esquire

Department of Environmental

Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Office of General Counsel

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Office of General Counsel

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.