00-004928 Old Florida Plantation, Ltd. vs. Polk County Board Of County Commissioners And Southwest Florida Water Management District Status: Closed Recommended Order on Monday, September 17, 2001.

Summary: Surface water management retrofit project by County; flow through privately owned property. Permit conditioned on necessary easements. Standard general permit did not include entire drainage basin. No adverse impacts on water/environment. RO: grant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLD FLORIDA PLANTATION, LTD., )

)

Petitioner, )

)

vs. ) Case No. 00-4928

)

POLK COUNTY BOARD OF COUNTY )

COMMISSIONERS and SOUTHWEST )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Final hearing in this case was held on July 26 and 27,

2001, in Bartow, Florida, before J. Lawrence Johnston,

Administrative Law Judge (ALJ) of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Gregory R. Deal, Esquire

1525 South Florida Avenue, Suite 2

Lakeland, Florida 33803

For Southwest Florida Water Management District:

Margaret M. Lytle, Esquire

Martha A. Moore, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

For Polk County : Linda L. McKinley, Esquire

Polk County Attorney's Office

Post Office Box 9005, Drawer AT01

Bartow, Florida 33831-9005

STATEMENT OF THE ISSUE

The issue in this matter is whether Respondent, Polk County

Board of Commissioners (Polk County or County) has provided

Respondent, Southwest Florida Water Management District

(SWFWMD), with reasonable assurances that the activities Polk

County proposed to conduct pursuant to Standard General

Environmental Resource Permit (ERP) No. 4419803.000 (the Permit)

meet the conditions for issuance of permits established in Rules

40D-4.301, and 40D-40.302, Florida Administrative Code. (All

rule citations are to the current Florida Administrative Code.)

PRELIMINARY STATEMENT

On August 18, 1999, Polk County submitted a permit

application to SWFWMD seeking authorization to construct a

drainage improvement project. The project was intended to

alleviate flooding experienced in the Eagle Lake/Millsite Lake

Drainage Basin in Polk County, Florida, as a result of El Nino

weather conditions experienced in 1998. SWFWMD determined that

the permit application for the proposed project gave reasonable

assurances that the conditions for issuance of permits have been

met and a notice of final agency action for issuance of the

Permit was issued by SWFWMD on October 6, 2000. Petitioner

submitted a timely Petition for Formal Administrative Hearing on

October 30, 2000, and the matter was referred to DOAH on

December 4, 2000.

An Initial Order was issued on December 12, 2000, and the

parties responded by requesting that the case be placed in

abeyance while the parties attempted to settle. On April 19,

2001, the parties reported that settlement discussions had

failed and that final hearing should be scheduled.

Respondents filed their Pre-Hearing Statement on July 19,

2001, and filed an Amended Pre-Hearing Statement on July 20,

2001, to verify service on the parties. Petitioner did not file

its Pre-Hearing Statement until July 24, 2001. On that same

date, a telephonic conference was held to discuss the status of

the case. On the afternoon of July 24, 2001, and also on

July 25, 2001, Petitioner amended its Pre-Hearing Statement to

add more exhibits.

At final hearing, Polk County presented the testimony of :

Jeffrey Spence, an Environmental Planner who is the Polk County

Natural Resource Director; Michael L. Whigham, the former Polk

County Drainage Manager; and Walter R. Reigner, a Professional

Engineer with the firm of BCI Engineers & Scientists, Inc. of

Lakeland, Florida (accepted as an expert in the areas of surface

water management systems, drainage and water quality). Polk

County also had County Exhibits 1-17 admitted into evidence.

SWFWMD presented the testimony of: Jan R. Burke, Jr., a Senior

Professional Engineer with SWFWMD (accepted as an expert in

surface water management systems and environmental resource

permitting); and Mark K. N. Hurst, an Environmental Scientist

with SWFWMD (accepted as an expert in wetland system

delineation, mitigation, and environmental resource permitting).

SWFWMD also had SWFWMD Exhibits 1-6 admitted into evidence.

Petitioner presented testimony from lay witnesses James W.

Allen, III and Louis L. Roeder, III, and from Professional

Engineer Richard C. Wohlfarth of CCL Consultants, Inc. (accepted

as an expert in the field of water management). Petitioner's

Exhibits 1-19 also were admitted in evidence. Respondents

presented rebuttal testimony from Mark K. N. Hurst and Walter R.

Reigner, and Petitioner presented surrebuttal testimony from

Louis L. Roeder, III.

SWFWMD ordered a transcript of final hearing, and the

parties were given ten days from the filing of the transcript in

which to file proposed recommended orders and argument. The

Transcript was filed on August 8, 2001. Respondents' Joint

Proposed Recommended Order and Joint Argument were timely filed

on August 20, 2001. Petitioner filed Arguments a day late on

August 21, 2001, and Amended Arguments on August 22 , 2001.

On August 24, 2001, SWFWMD and the County filed a Motion to

Strike Petitioner's Arguments and Amended Arguments as untimely,

and Petitioner responded in opposition. The Motion to Strike is

denied, and all post-hearing submittals have been considered.

FINDINGS OF FACT

Events Preceding Submittal of ERP Application

1. The Eagle-Millsite-Hancock drainage system dates back

to at least the 1920's, and has been altered and modified over

time, especially as a result of phosphate mining activities

which occurred on OFP property in the 1950's-1960's. The system

is on private property and is not owned and was not constructed

by the County. Prior to 1996, the Eagle-Millsite-Hancock

drainage system was in extremely poor repair and not well-

maintained.

2. The Eagle-Millsite-Hancock drainage system originates

at Eagle Lake, which is an approximately 641-acre natural lake,

and discharges through a ditch drainage system to Lake Millsite,

which is an approximately 130-acre natural lake. Lake Millsite

drains through a series of ditches, wetlands, and ponds and

flows through OFP property through a series of reclaimed

phosphate pits, ditches and wetlands and ultimately flows into

Lake Hancock, which is an approximately 4500-acre lake that

forms part of the headwaters for the Peace River. The drainage

route is approximately 0.5 to 1 mile in overall length.

3. The Eagle-Millsite-Hancock drainage system is one of

eight regional systems in the County for which the County and

SWFWMD have agreed to share certain funding responsibilities

pursuant to a 1996 letter agreement. To implement improvements

to these drainage systems, Polk County would be required to

comply with all permitting requirements of SWFWMD.

4. During the winter of 1997-1998, Polk County experienced

extremely heavy rainfall, over 39 inches, as a result of El Nino

weather conditions. This unprecedented rainfall was preceded by

high rainfalls during the 1995-1996 rainy season which saturated

surface waters and groundwater levels.

5. During 1998, Polk County declared a state of emergency

and was declared a federal disaster area qualifying for FEMA

assistance. Along the Lake Eagle and Millsite Lake drainage

areas, septic tanks were malfunctioning, wells were inundated

and roads were underwater. The County received many flooding

complaints from citizens in the area.

6. As a result of flooding conditions, emergency measures

were taken by the County. The County obtained SWFWMD

authorization to undertake ditch cleaning or vegetative control

for several drainage ditch systems in the County, including the

Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit

was required or obtained for this ditch cleaning and vegetative

control.

7. During its efforts to alleviate flooding and undertake

emergency ditch maintenance along the Eagle-Millsite-Hancock

drainage route, the County discovered a driveway culvert near

Spirit Lake Road which was crushed and impeding flow. The

evidence was unclear and contradictory as to the size of the

culvert. Petitioner's evidence suggested that it consisted of a

24-inch pipe while evidence presented by the County and by

SWFWMD suggested that it was a 56-inch by 36-inch arched pipe

culvert. It is found that the latter evidence was more

persuasive.

8. On February 25, 1998, the County removed the crushed

arched pipe culvert at Spirit Lake Road and replaced it with two

48-inch diameter pipes to allow water to flow through the

system. The replacement of this structure did not constitute

ditch maintenance, and it required a SWFWMD ERP. However, no

ERP was obtained at that time (although SWFWMD was notified

prior to the activity). (One of the eight specific construction

items to be authorized under the subject ERP is the replacement

of this culvert.)

9. Old Florida Plantation, Ltd. (OFP) property also

experienced flooding during February 1998. OFP's property is

situated along the eastern shore of Lake Hancock, and the Eagle-

Millsite-Hancock drainage system historically has flowed across

the property before entering Lake Hancock. In the 1950's and

1960's, the property was mined for phosphate. The mining

process destroyed the natural vegetation and drastically altered

the soils and topography, resulting in the formation of areas of

unnaturally high elevations and unnaturally deep pits that

filled with water.

10. OFP purchased the property from U.S. Steel in 1991.

The next year OFP initiated reclamation of the property, which

proceeded through approximately 1998. In 1996, OFP applied to

the County for approval of a development of regional impact

(DRI).

11. OFP blamed the flooding on its property in 1998 on the

County's activities upstream, claiming that the property had

never flooded before. But upon investigation, the County

discovered a 48-inch diameter pipe on OFP property which, while

part of OFP's permitted drainage system, had been blocked

(actually, never unopened) due to OFP's concerns that opening

the pipe would wash away wetlands plants recently planted as

part of OFP's wetland restoration efforts. With OFP and SWFWMD

approval, the County opened this pipe in a controlled manner to

allow flowage without damaging the new wetlands plants.

Following the opening of this blocked pipe, OFP property

upstream experienced a gradual drop in flood water levels. When

the water level on OFP's property stabilized, it was five feet

lower and no longer flooded.

12. Nonetheless, OFP continues to maintain not only that

the County's activities upstream caused flooding on OFP property

but also that they changed historic flow conditions. This

contention is rejected as not being supported by the evidence.

Not only did flooding cease after the 48-inch pipe on OFP's

property was opened, subsequent modeling of water flows also

demonstrated that the County's replacement of the crushed box

culvert at the driveway on Spirit Lake Road as described in

Finding 8, supra , did not increase flood stages by the time the

water flows into the OFP site and did not cause flooding on OFP

property in 1998. (To the contrary, OFP actions to block flows

onto its property may have contributed to flooding upstream.)

13. On October 6, 1998, the County entered into a contract

with BCI Engineers and Scientists to initiate a study on the

Eagle-Millsite-Hancock drainage system, identify options for

alleviating flooding along the system and prepare an application

for an ERP to authorize needed improvements to the system.

14. Prior to the County's submittal of an ERP application,

SWFWMD issued a conceptual ERP to OFP for its proposed wet

detention surface water management system to support its

proposed DRI on the OFP property. OFP's conceptual permit

incorporated the Eagle-Millsite-Hancock drainage system and

accommodated off-site flowage into the system.

15. Before submitting an ERP application to SWFWMD, the

County had communications with representatives of OFP concerning

an easement for the flow of the drainage system through OFP

property. In March 1999, the County reached an understanding

with OFP's engineering consultant whereby OFP would provide the

County with an easement across OFP lands to allow water to flow

through to Lake Hancock. In turn, the County would: construct

and pay for a control structure and pipe east of OFP to provide

adequate flowage without adversely affecting either upstream or

downstream surface waters; construct and upgrade any pipes and

structures needed to convey water across OFP property to Lake

Hancock; and provide all modeling data for OFP's review.

The ERP Application

16. Following completion of the engineering study, the

County submitted ERP Application No. 4419803.000 for a Standard

General ERP to construct improvements to the Eagle-Millsite-

Hancock drainage system on August 18, 1999.

17. Eight specific construction activities are proposed

under the County's project, at various points along the Eagle-

Millsite-Hancock drainage system as follows: 1) Add riprap along

channel bottom; 2) Modify culvert by replacing 56-inch by 36-

inch arch pipe by two 48-inch pipes (after-the-fact, done in

1998, as described in Finding 8, supra ); 3) Add riprap along

channel bottom; 4) Add box, modify culvert by replacing existing

pipe with two 48-inch pipes, add riprap along channel bottom; 5)

add riprap along channel bottom; 6) Add weir, modify culvert by

replacing existing 24-inch pipe with two 48-inch pipes, add

riprap along channel bottom; 7) Add box and modify culvert by

replacing existing 24-inch pipe with two 48-inch pipes; 8)

Modify existing weir.

18. Under the County's application, construction

activities Nos. 6, 7, and 8 would occur on OFP property. In

addition, it was proposed that surface water would flow across

OFP's property (generally, following existing on-site drainage

patterns), and it was indicated that flood elevations would rise

in some locations on OFP's property as a result of the

improvements proposed in the County's application. (Most if not

all of the rise in water level would be contained within the

relatively steep banks of the lakes on OFP's property--the

reclaimed phosphate mine pits.) In its application, the County

stated that it was in the process of obtaining easements for

project area.

19. As part of the ERP application review process, SWFWMD

staff requested, by letter dated September 17, 1999, that the

County clarify the location of the necessary rights-of-way and

drainage easements for the drainage improvements and provide

authorization from OFP as property owner accepting the peak

stage increases anticipated in certain OFP lakes as a result of

the County's proposed project activities.

20. On September 28, 1999, OFP obtained a DRI development

order (DO) from the County. In pertinent part, the DRI DO

required that OFP not adversely affect historical flow of

surface water entering the property from off-site sources.

Historical flow was to be determined in a study commissioned by

the County and SWFWMD. The DO appeared to provide that the

study was to be reviewed by OFP and the County and approved by

SWFWMD. Based on the study, a control structure and pipe was to

be constructed, operated and maintained by the County at the

upstream side of the property that would limit the quantity of

off-site historical flow, unless otherwise approved by OFP. OFP

was to provide the County with a drainage easement for this

control structure and pipe, as well as a flowage easement from

this structure, through OFP property, to an outfall into Lake

Hancock. The DO specified that the flowage easement was to be

for quantitative purposes only and not to provide water quality

treatment for off-site flows. The DO required OFP to grant a

defined, temporary easement prior to first plat approval.

21. In its November 11, 1999, response to SWFWMD's request

for additional information, the County indicated it would obtain

drainage easements and that it was seeking written

acknowledgment from OFP accepting the proposed increases in lake

stages.

22. During the ERP application review process, the County

continued efforts to obtain flowage easements or control over

the proposed project area and OFP's acknowledgment and

acceptance of the increase in lake stages. At OFP's invitation,

the County drafted a proposed cross-flow easement. But before a

binding agreement could be executed, a dispute arose between OFP

and the County concerning other aspects of OFP's development

plans, and OFP refused to enter into an agreement on the cross-

flow easement unless all other development issues were resolved

as well.

23. On August 4, 2000, in response to SWFWMD's request

that the County provide documentation of drainage easements

and/or OFP's acceptance of the increased lake stages on OFP

property, the County submitted a proposed and un-executed

Perpetual Flowage and Inundation Easement and an Acknowledgment

to be signed by OFP accepting the increased lake stages.

24. On August 7, 2000, the OFP property was annexed by the

City of Bartow (the City). On October 16, 2000, the City

enacted Ordinance No. 1933-A approving OFP's DRI application.

The City's DO contained essentially the same provision on Off-

Site Flow contained in the County's DO. See Finding 18, supra .

However, the City's DO specified that the historical flow study

was required to be reviewed and approved by OFP (as well as by

the County and by SWFWMD). OFP has not given formal approval to

historical flow studies done to date.

25. On October 6, 2000, SWFWMD issued a Notice of Final

Agency Action approving Polk County ERP No. 4419803.000. Permit

Specific Condition No. 7 provides that "all construction is

prohibited within the permitted project area until the Permittee

acquires legal ownership or legal control of the project area as

delineated in the permitted construction drawings." As a result

of this permit condition, the County cannot undertake

construction as authorized under the Permit until any needed

easement or legal control is obtained.

Precise Easement Route

26. Approximately two months before final hearing, a

dispute arose as to the precise cross-flow easement route

proposed by the County. OFP had understood that the County's

proposed route was based on a detailed survey. But closer

scrutiny of the County's proposed route indicated that it cut

corners of existing lakes on OFP's property, crossed residential

lots proposed by OFP, and veered north into uplands (also

proposed for residential use) in the western portion of the

route before looping south and then north again to the outfall

at Lake Hancock. Information subsequently revealed in the

course of discovery suggested that the County's proposed route

may have been based on pre-reclamation topography of OFP's

property.

27. After OFP recognized the implications of the cross-

flow easement route being proposed by the County, OFP provided

the County with several different alternative easement routes

through the OFP property. While agreement as to the precise

route has not yet been reached, the precise route of the

easement is not significant to the County, as long as water can

flow across OFP property to Lake Hancock and so long as the

County does not have to re-locate existing ditches. Such

adjustments in the location of the proposed flowage easement

would not affect SWFWMD staff's recommendation for permit

issuance, as long as it covered the defined project areas.

28. In addition, OFP's current site plan is a preliminary,

conceptual plan subject to change before it is finalized.

Regardless what cross-flow easement route is chosen, it will be

temporary and subject to modification when OFP's development

plan is finalized.

29. If the County is unable to not negotiate a flowage

easement across OFP property, it could obtain whatever easement

is required through use of the County's eminent domain powers.

30. The County's acquisition of an easement to accommodate

a flowage route and anticipated increased stage on OFP property

gives reasonable assurance that any stage increases will not

cause adverse impacts to OFP property and gives reasonable

assurance that the County will have sufficient legal control to

construct and maintain the improvements.

Project Area

31. The County applied for a Standard General Permit and

specified a total project area of 0.95 acre. This acreage

reflects the area required for actual construction and

alteration of control structures and drainage ditches in the

preexisting Eagle-Millsite-Hancock system. It does not reflect

the entire acreage drained by that system (approximately 1,800

to 2,000 acres). It also does not reflect the area of the

cross-flow easement, which the County has yet to obtain.

32. When determining project size for purposes of

determining the type of permit applicable to a project, SWFWMD

staff considers maximum project area to be limited to the

acreage owned or controlled by the applicant. In addition,

since this is a retrofit project for improvement of an existing

drainage system not now owned or controlled by the County,

SWFWMD staff only measured the area required for actual

construction and alteration of control structures and drainage

ditches. Future easements necessary for future maintenance of

the system were not included.

33. When OFP applied for its conceptual ERP for its

proposed DRI, the project area was considered to be the acreage

owned by OFP. The rest of the basin draining through OFP's

property to Lake Hancock (again, approximately 1,800 to 2,000

acres) was not considered to be part of the project area.

Water Quantity Impacts

34. The County's project will retrofit certain components

of the same drainage system which OFP will utilize for surface

water management and treatment pursuant to its conceptual ERP.

Modeling presented in the County's application demonstrates that

there will be some rises and some lowering of some of the lake

levels on OFP's property during certain rain events.

35. Anticipated rises are lower than the top of banks

authorized in OFP's conceptual permit; hence the system will

continue to function properly.

36. While there are some differences in the County's

permit application and OFP's conceptual permit application

concerning modeling estimates of flow rates through OFP

property, the differences are minor and are attributed to

differences in modeling inputs. The County used more detailed

modeling information. Any such differences are not significant.

37. Differences in flow rates provided in the County's

proposed permit and in OFP's conceptual permit do not render the

permits as incompatible. If the County's permit were issued,

any modeling undertaken in connection with a subsequent

application by OFP for a construction permit would have to be

updated to include the County's improvements to the system.

This outcome is not a basis for denial of the County's permit.

38. While the rate at which water will flow through the

system will increase, no change in volume of water ultimately

flowing through the drainage system is anticipated as a result

of the County's proposed improvements.

39. The increased lake stages which are anticipated to

occur on OFP property as a result of the County's project will

not cause adverse water quantity impacts to the receiving waters

of Lake Hancock or adjacent lands.

40. The project will not cause adverse flooding to on-site

or off-site property.

41. The project will not cause adverse impacts to existing

surface water storage and conveyance capabilities.

42. The project will not adversely impact the maintenance

of surface or ground water levels or surface water flows

established pursuant to Chapter 373.042, Florida Statutes.

Water Quality Impacts

43. No adverse impacts to water quality on OFP property

are anticipated from the County's proposed drainage

improvements. The project will not add any pollutant loading

source to the drainage system and is not expected to cause any

algae blooms or fish kills in OFP waters or cause any additional

nutrient loading into OFP's surface water management systems.

44. As reclaimed phosphate mine pits, the lakes on OFP's

property are high in phosphates. Meanwhile, water quality in

upstream in Millsite Lake and Eagle Lake is very good. Off-site

flow of higher quality water flushing the OFP lakes will improve

the water quality on the OFP site.

45. The County's project will have no adverse impact on

the quality of water in the downstream receiving of Lake Hancock

(which currently has poor water quality due in large part to

past phosphate mining).

46. Upstream of OFP, the project will not cause any

adverse water quality impacts and is anticipated to result in

positive impacts by lessening the duration of any flooding event

and thereby lessening septic tank inundation from flooding.

This will have a beneficial impact on public health, safety, and

welfare.

47. Thus, there is a public benefit to be gained in having

the County undertake the proposed drainage and flood control

improvements now, rather than waiting for OFP to finalize its

plat and construct its development project.

48. The County's proposed improvements do not require any

formal water quality treatment system. The improvements are to

a conveyance system and no impervious surfaces or other

facilities generating pollutant loading will be added.

49. Upstream of OFP, the Eagle-Millsite-Hancock drainage

system flows through natural lakes and wetlands systems that

provide natural water quality treatment of the existing drainage

basin. OFP expressed concern that the County's improvements to

drainage through these areas (including the ditch maintenance

already performed in 1998) will increase flow and reduce

residence time, thereby reducing natural water quality

treatment. But ditch maintenance does not require an ERP, and

the County gave reasonable assurances that reduction in natural

water quality treatment will not be significant, especially in

view of the good quality of the water flowing through the system

out of Eagle Lake and Millsite Lake. As a result, it is found

that the County's proposed project will not adversely affect the

quality of receiving waters such that any applicable quality

standards will be violated.

50. Indeed, OFP's expert consultant conceded in testimony

at final hearing that OFP has no reason to be concerned about

the quality of water at present. Rather, OFP's real concern is

about water quality in the future. Essentially, OFP is asking

SWFWMD to require the County to guarantee OFP that future

development in the area will not lead to any water quality

problems. Requiring such a guarantee as a condition to issuance

of an ERP would go far beyond SWFWMD requirements and is never

required of any applicant.

51. Besides being speculative on the evidence in this

case, future development in the area will be required to meet

applicable SWFWMD water quality requirements. SWFWMD permitting

required for such future development would be the proper forum

for OFP to protect itself against possible future reduction in

water quality (as well as possible future increase in water

quantity).

Environmental Impacts

52. The drainage ditches to be improved by the County's

project were originally constructed before 1984. These upland

cut ditches were not constructed for the purpose of diverting

natural stream flow, and are not known to provide significant

habitat for any threatened or endangered species.

53. The County provided reasonable assurance that the

proposed project will not change the hydroperiod of a wetland or

other surface water, so as to adversely affect wetland functions

or other surface water functions.

54. The functions of the wetlands and surface waters to be

affected by the proposed project include conveyance, some water

quality treatment, and possibly some wildlife movement or

migration functions between the wetlands served by the ditches.

55. Wetland impacts from the project consists of .63 acre

of permanent impacts and .21 acre of temporary impacts, for a

total of .84 acre of impact. The permanent impacts consist of

the replacement of pipes with new structures in the ditches and

the addition of rip rap in areas to prevent sedimentation and

erosion.

56. The proposed project's anticipated increase in the

rate of flow is expected to lessen the duration of any flooding

event at the upper end of the drainage system, and at the

downstream end is expected to create a subsequent rise in some

of the lakes and storage areas on the OFP property during

certain rain events.

57. The anticipated rise in some of the reclaimed lakes on

OFP property is not anticipated to have any adverse impact on

the functions that those surface waters provide to fish,

wildlife or any threatened or endangered species. The reclaimed

lakes subject to rise in water levels for certain rain events

are steep-sided and do not have much littoral zone, and little,

if any, loss of habitat will result.

58. The County's application provides reasonable assurance

that the anticipated stage increase in affected wetlands or

surface waters will not adversely affect the functions provided

by those wetlands or surface waters.

59. The County provided reasonable assurance that the

proposed project will not violate water quality standards in

areas where water quality standards apply, in either the short-

term or the long-term. Long-term effects were addressed in

Finding 43-51, supra . Short-term water quality impacts

anticipated during the construction of the proposed improvements

will be addressed through the use of erosion and sediment

controls.

60. The proposed project also will not create any adverse

secondary impacts to water resources.

61. The project will not cause any adverse impacts to the

bird rookery located to the north on OFP property.

62. The project will not cause any adverse impacts to the

bass in OFP's lakes, a concern expressed by OFP relatively

recently. To the contrary, since the project will improve water

quality in OFP's lakes, the impact on OFP's bass is expected to

be positive.

63. OFP raised the issue of a bald eagle nesting site

located on its property. The evidence was that a pair of bald

eagles has built a nest atop a Tampa Electric Company (TECO)

power pole on the property in October of each year since 1996.

Each year the pair (which is thought to be the same pair) has

used a different TECO power pole. Most of the nests, including

the one built in October 2000, have been on poles well south of

any construction proposed under the County's ERP and clearly

outside of the primary and secondary eagle management zones

designated by the U.S. Fish and Wildlife Service. But one year,

a nest was built on a pole farther north and possibly within the

secondary eagle management zone.

64. OFP presented testimony that U.S. Fish and Wildlife

would require OFP to apply for an "incidental take" in order to

build homes within the primary eagle protection zones around any

of the four poles on which eagles have built nests since 1996;

timing of construction of homes within the secondary protection

zones may be affected. Even accepting OFP's testimony, there

was no evidence as to how U.S. Fish and Wildlife would view

construction of the County's proposed drainage improvements on

OFP property within those zones. In addition, the evidence was

that, in order to accomplish its DRI plans to build homes in the

vicinity of the TECO power poles that have served as eagle nests

in recent years, without having to apply for an "incidental

take," OFP plans to place eagle poles (more suitable for eagle

nests than power poles, which actually endanger the eagles) in

another part of its property which is much more suitable habitat

in order to encourage the eagles to build their nest there. The

new location would put the County's proposed construction

activity far outside the primary and secondary eagle management

zones.

Other Permitting Requirements

65. The County's proposed project is capable, based on

generally accepted scientific engineering and scientific

principles, of being effectively performed and of functioning as

proposed.

66. The County has the financial, legal, and

administrative capability of ensuring that the activity proposed

to be undertaken can be done in accordance with the terms and

conditions of the permit.

67. No evidence was presented by Petitioner that the

Project will cause adverse impacts to any work of the District

established under Section 373.086, Florida Statutes.

68. No evidence was presented by Petitioner that the

project will not comply with any applicable special basin or

geographic area criteria established under Chapter 40D-3,

Florida Administrative Code.

CONCLUSIONS OF LAW

69. If a regulatory agency gives notice of intent to grant

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

formal administrative hearing of going forward with the

presentation of a prima facie case of the applicant's

entitlement to a permit. Once a prima facie case is made, the

burden of going forward can be shifted to the Petitioner to

present competent substantial evidence, consistent with the

allegations of the petition, that the applicant is not entitled

to the permit. Unless the Petitioner presents "contrary

evidence of equivalent quality" to that presented by the

applicant and agency, the permit must be approved. Florida

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

778, 789-790 (Fla. 1st DCA 1981).

70. The issuance of a 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).

Legal Ownership or Control

71. Rule 40D-4.101 provides in pertinent part:

(2) The application must be signed by the

owner or the owner's authorized agent.

Applications signed by an agent must contain

a letter of authorization which is signed by

the owner.

(3) Notwithstanding the provisions of

subsection (2), persons authorized by

entities with the power of eminent domain

may sign the application in lieu of the

owner when applying on behalf of the entity

and notice to the property owner(s) is

provided pursuant to 40D-1.603(5).

72. Rule 40D-1.6105(1) sets out the following limiting

condition applicable to SWFWMD permits generally:

All permits issued pursuant to these Rules

are contingent upon the continued ownership,

lease, or other legal control of property

rights in underlying, overlying, or adjacent

lands, or the power to acquire such property

rights through eminent domain .

(Emphasis added.)

73. Rule 40D-4.381(1) provides in pertinent part:

(r) This permit does not convey to the

permittee or create in the permittee any

property right, or any interest in real

property, nor does it authorize any entrance

upon or activities on property which is not

owned or controlled by the permittee, or

convey any rights or privileges other than

those specified in the permit and Chapter

40D-4 or Chapter 40D-40, F.A.C.

(s) The permittee shall hold and save the

District harmless from any and all damages,

claims, or liabilities which may arise by

reason of the activities authorized by the

permit or any use of the permitted system.

In compliance with this rule, Specific Condition 7 of the

proposed permit prohibits construction "within the permitted

project area until the Permittee acquires legal ownership or

legal control of the project area as delineated in the permitted

construction drawings."

74. In light of these rules, SWFWMD is authorized to issue

the County an ERP subject to the County obtaining legal

ownership or control of the project area through easements, as

it did in this case.

Use of Standard General Permit

75. Rule 40D-4.021(15) defines a "general permit" as an

ERP issued or denied by SWFWMD staff without being presented to

the SWFWMD Governing Board. Standard General Permits are issued

pursuant to Chapter 40D-40, Florida Administrative Code.

Conditions for issuance of a Standard General ERP are contained

in Rule 40D-40.302. Subsection (2) of this rule provides, in

relevant part, that to qualify for a Standard General ERP, the

total project area must be less than 100 acres, and any

construction or alteration in or on wetlands and surface waters

is limited to a total of one acre or less of such wetlands or

surface waters.

76. Rule 40D-4.021(15) defines "project area" to mean "the

area within the total land area, as defined in section 40D-

4.021(11), which is or will be served by a surface water

management system to be permitted." Rule 40D-4.021(11) defines

"total land area" to mean "land holdings under common ownership

or control which are contiguous, or land holdings which are

served by a common surface water management system."

77. Interpreting these rule definitions in pari materia ,

SWFWMD staff considers maximum project area to be limited to

"land holdings under common ownership or control." Although the

wording of the rule definitions is ambiguous, staff's

interpretation is reasonable. To the contrary, under OFP's

interpretation, project area always would extend to the entire

drainage basin; if so, there would be no need for the rest of

the language in the rule definitions. OFP's interpretation does

not make sense; it is not logical to assume that SWFWMD put

superfluous language in its rule definitions.

78. The County's project qualifies for consideration as an

application for a standard general ERP consistent with Rules

40D-40.040(1)(b) and 40D-40.302(2).

Conditions for Issuance of Standard General Permit

79. The law which contains the conditions for issuance of

Environmental Resource Permits and which is applicable to this

proceeding is found in Rules 40D-4.301 and 40D-40.302.

80. Rule 40D-4.301(1) requires that, to obtain a standard

general permit, "an applicant must provide reasonable assurance

that the construction, alteration, operation, maintenance,

removal, or abandonment of a surface water management system:

a. will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

b. will not cause adverse flooding to on-

site or off-site property;

c. will not cause adverse impacts to

existing surface water storage and

conveyance capabilities;

d. will not adversely impact the value of

functions provided to fish and wildlife, and

listed species, by wetlands, other surface

waters and other water related resources of

the District;

e. will not adversely affect the quality of

receiving waters such that the water quality

standards set forth in chapters 62-3, 62-4,

62-302, 62-520, 62-522 and 62-550, F.A.C.,

including any antidegradation provisions of

sections 62-4.242(1)(a) and (b), 62-4.242(2)

and (3), and 62-302.300, F.A.C., and any

special standards for Outstanding Florida

Waters and Outstanding Nation Resource

Waters set forth in sections 62-4.242(2) and

(3), F.A.C., will be violated;

f. will not cause adverse secondary impacts

to the water resources;

g. will not adversely impact the

maintenance of surface or ground water

levels or surface water flows established

pursuant to Chapter 373.042, F.S.;

h. will not cause adverse impacts to a work

of the District established pursuant to

Section 373.086, F.S.;

i. is capable, based on generally accepted

engineering and scientific principles, of

being effectively performed and of

functioning as proposed;

j. will be conducted by an entity with

financial, legal and administrative

capability of ensuring that the activity

will be undertaken in accordance with the

terms and conditions of the permit, if

issued.

k. will comply with any applicable special

basin or geographic area criteria

established pursuant to this chapter.

81. Rule 40D-4.301(3) provides that the standards and

criteria contained in the Basis of Review for Environmental

Resource Permit Applications (BOR) shall determine whether the

reasonable assurances required by Rule 40D-4.301(1) and Rule

40D-4.302(1) have been provided. Rule 40D-4.091(1) incorporates

the BOR into the rules of SWFWMD.

82. For projects involving alterations to drainage ditches

constructed in uplands before a permit was required or pursuant

to a permit, not for the purpose of diverting natural stream

flow, and which do not provide significant habitat for

threatened or endangered species, BOR Section 3.2.2.2 limits the

environmental review necessary for determining whether an

applicant has provided the required reasonable assurances.

83. BOR Section 3.2.2.2 is applicable to Polk County's

application for a standard general permit.

84. By operation of BOR Section 3.2.2.2, the County's

project is not required to comply with the provisions of Rules

40D-4.302 or 40D-4.301(1)(d) and (f). The only environmental

criteria applicable to this project are those included in BOR

subsections 3.2.2.4 and 3.2.4 through 3.2.4.5.

85. The County has provided reasonable assurance that the

proposed project will not cause adverse water quantity impacts

to receiving waters and adjacent lands.

86. The County has provided reasonable assurance that the

proposed project will not cause adverse flooding to on-site or

off-site property.

87. The County has provided reasonable assurance that the

proposed project will not cause adverse impacts to existing

surface water storage and conveyance capabilities.

88. The County has provided reasonable assurance that the

proposed project will not adversely affect the quality of

receiving waters such that water quality standards will be

violated.

89. The County has provided reasonable assurance that the

proposed project will not adversely impact the maintenance of

surface or ground water levels or surface water flows

established pursuant to Chapter 373.042, Florida Statutes.

90. The County has provided reasonable assurance that the

proposed project is capable, based on generally accepted

engineering and scientific principles, of being effectively

performed and of functioning as proposed.

91. The County has provided reasonable assurance that the

proposed project will be constructed by an entity with

financial, legal, and administrative capability of ensuring that

the activity will be undertaken in accordance with the terms and

conditions of the permit, if issued.

92. Not at issue in this matter are conditions specified

in Rules 40D04.301(1)(h) and 40D-4.301(1)(k).

93. While the County's project is not required to comply

with the provisions of Rules 40D-4.301(1)(d) and (f) or 40D-

4.302(1), the County has provided reasonable assurance that the

proposed project will not cause adverse secondary impacts to the

water resources, will not cause unacceptable cumulative impacts

upon wetlands and other surface waters, and will not adversely

impact the value of functions provided to fish and wildlife, and

listed species including aquatic and wetland dependent species,

by wetlands, other surface waters and other water related

resources of SWFWMD.

94. Respondent Polk County met its initial burden of proof

in presenting a prima facie case that the conditions for

issuance of permits under Rules 40D-4.301 and 40D-4.302 have

been met for Standard General Environmental Resource Permit No.

4419803.000.

95. Petitioner did not present "contrary evidence of

equivalent quality" to that presented by Polk County and SWFWMD

to support Petitioner's position that Polk County was not

entitled to the permit. To the extent that Petitioner presented

such evidence, it was not as persuasive as that presented by the

County and SWFWMD.

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 issuing Standard General

Environmental Resource Permit No. 4419803.000.

DONE AND ENTERED this 17th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September, 2001.

COPIES FURNISHED:

Linda L. McKinley, Esquire

Polk County Attorney's Office

Post Office Box 9005, Drawer AT01

Bartow, Florida 33831-9005

Gregory R. Deal, Esquire

1525 South Florida Avenue, Suite 2

Lakeland, Florida 33803

Margaret M. Lytle, Esquire

Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604-6899

E. D. Sonny Vergara, Executive Director

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 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.