01-004545 Shirley B. Haynes And Egerton K. Van Den Berg vs. Kgb Lake Howell, Llc And St. Johns River Water Management District Status: Closed Recommended Order on Friday, March 29, 2002.

Summary: Applicant for stormwater surface management system approved; mitigation plan adequate; issue of apartment density approved by City non-jurisdictional.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY B. HAYNES and )

EGERTON K. VAN DEN BERG, )

)

Petitioners, )

)

vs. ) Case Nos. 01 - 4250

) 01 - 4545

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and )

KGB LAKE HOWELL, LLC, )

)

Respondents. )

_________________________ _____)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on January 29,

30, and 31, 2002, in Orlando, Florida.

APPEARANCES

For Pe titioner: Shirley B. Haynes, pro se

2764 Lake Howell Road

Winter Park, Florida 32792 - 5725

For Petitioner: Egerton K. van den Berg, pro se

1245 Howell Point

Winter Park, Florida 32792 - 5706

For Respondent: Meredith A. Harper, Esquire

(Applicant) Michael L. Gore, Esquire

Kenneth W. Wright, Esquire

Shutts & Bowen

Post Office Bo x 4956

Orlando, Florida 32802 - 4956

For Respondent: Charles A. Lobdell, III, Esquire

(District) Thomas I. Mayton, II, Esquire

St. Johns River Water Management District

Po st Office Box 1429

Palatka, Florida 32178 - 1429

STATEMENT OF THE ISSUE

The issue is whether an Environmental Resource Permit

should be issued to KGB Lake Howell, LLC, authorizing the

construction of a surface water management system to serve an

apartment complex known as the Estates at Lake Howell in the

City of Casselberry, Florida.

PRELIMINARY STATEMENT

This matter began on September 18, 2001, when Respondent,

St. Johns River Water Management District, issued its Written

Notice of Intended District Decision on Permit Application 40 -

117 - 71671 - 1 authorizing Respondent, KGB Lake Howell, LLC, to

construct a stormwater management system for an apartment

complex in the City of Casselberry, Florida. On October 11,

2001, Petitioners, Shirl ey B. Haynes and Egerton K. van den

Berg, who reside near the project, submitted a joint letter

requesting an administrative hearing to contest the issuance

of the permit. In addition, Haynes submitted a separate

letter the same date requesting that her l etter be treated as

a petition for an administrative hearing. The latter letter

was forwarded to the Division of Administrative Hearings on

October 30, 2001, with a request that an Administrative Law

Judge be assigned to conduct a hearing. That matter wa s

assigned Case No. 01 - 4250. Thereafter, both Petitioners filed

an Amended Petition for Administrative Proceeding on November

19, 2001. The Amended Petition was forwarded to the Division

of Administrative Hearings on November 26, 2001, and has

been ass igned Case No. 01 - 4545. By Order dated December 12,

2001, the two cases were consolidated.

By Notice of Hearing dated November 14, 2001, a final

hearing was scheduled on January 9 and 10, 2002, in Orlando,

Florida. At the request of Shirley B. Haynes, th e hearing was

continued to January 29 - 31, 2002, at the same location.

At the final hearing, Petitioners both testified on their

own behalf and offered Petitioners' Exhibits 1 - 3, 5A - C, 6 - 8,

13, 41, 46A - C, and 51 - 54. All were received in evidence

except Exh ibits 5A - C. Respondent, KGB Lake Howell, LLC,

presented the testimony of Jeffrey D. Einhouse, a professional

engineer accepted as an expert; Kimberly M. Allerton, an

environmental consultant accepted as an expert; and Robert R.

Russell, a professional eng ineer accepted as an expert. Also,

it offered Applicant's Exhibits 2 - 4, 6A and B, 8, 9A - C, 10,

14A - D, 17, and 35. All were received in evidence.

Respondent, St. Johns River Water Management District,

presented the testimony of James Hollinghead, a hydro logist

accepted as an expert; Rod Pakzadian, a professional engineer

accepted as an expert; and Timothy Wetzel, a regulatory

scientist accepted as an expert. Also, it offered District

Exhibits 1 - 16, which were received in evidence. Finally, the

undersign ed took official recognition of the St. Johns River

Water Management District Applicant's Handbook for Management

and Storage of Surface Waters, and Chapters 40C - 4, 40C - 40, and

40C - 42, Florida Administrative Code.

The Transcript of the hearing (five volume s) was filed on

February 13, 2002. At the request of Petitioners, the time

for filing proposed findings of fact and conclusions of law

was extended to March 1, 2002. The same were timely filed by

the parties, and they have been considered by the undersig ned

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. In this proceeding, Respondent, St. Johns River Water

Management District (District), p roposes to issue an

Environmental Resource Permit to Respondent, KGB Lake Howell,

LLC (Applicant), authorizing the construction of a stormwater

management system to serve a 240 - unit apartment complex known

as the Estates of Lake Howell. The project will b e located on

an undeveloped tract of land in the City of Casselberry

(City), Seminole County, Florida, just north of the Orange

County line. It will include ten three - story buildings,

parking, clubhouse/ administration building, amenity complex,

and wet d etention pond.

2. The project also incorporates a 3.62 - acre stormwater

pond, now owned and used by Seminole County (County), lying

east of Lake Ann Lane across from the project site, which was

included in the overall acreage calculations for the purpose

of increasing apartment density on the site. The Applicant

has authorization from the County to apply for the permit

incorporating that tract of land. The pond will continue to

function as a stormwater facility for the County and will not

accommodate st ormwater from the project site.

3. The project site consists of 38.9 acres located on

the north side of Howell Branch Road, east of State Road 436

(also known as Semoran Boulevard), and west of Lake Ann Lane

in the City. The site is currently undeveloped and includes

an abandoned orange grove and upland pine flatwoods community,

which make up approximately 14.6 acres, while the remaining

24.3 acres is a mixed forested wetland system. The property

is now owned by the Harold Kasik Living Trust (Kasik

prope rty), which has a contract for purchase with the

Applicant.

4. The Kasik property is in the shape of a rectangle,

648 feet by 2,530 feet, with its long sides running north -

south. It is bordered on the north and east by single - family

residential and vac ant land, to the south by commercial

development, and to the west by high - density residential and

commercial development. The property has a high elevation of

approximately 83 feet on its southeastern corner and falls to

the north/northeast, where the edge of the wetland system is

at an elevation of 63 or 64 feet.

5. The major development constraint on the site is the

large wetland tract on the northern portion of the property.

In order to minimize proposed impacts to the wetlands, the

Applicant propose d the transfer of the development

entitlements from the County land to benefit the Applicant's

property. More specifically, the Applicant will acquire the

County property, the Applicant will simultaneously grant a

perpetual drainage easement over the prop erty to the County,

the Applicant will maintain the landscaping of the property in

perpetuity, the Applicant will convey around five acres of

wetlands on the northern end of the Kasik property to the

County in fee simple, and the City will allow the transf er of

development rights from the property.

6. The project will adversely impact 0.99 acres of low -

quality wetlands, of which 0.72 acres are to be dredged and

0.27 acres are to be filled to provide the fencing around the

wet detention facility. To offset this impact, the Applicant

proposes to preserve 17.8 acres of forested wetlands, plus 1.2

acres of forested uplands, or a mitigation ratio of 18:1. The

District's guidelines for preservation mitigation applicable

to this project are 10:1 to 60:1 for wetl and impacts and 3:1

to 20:1 for upland impacts; thus, the mitigation plan falls

within these guidelines.

7. Under current conditions, stormwater runoff from the

project site sheet flows into the on - site wetland and

ultimately Lake Howell (the Lake), a Cla ss III water body

which meets all applicable water quality standards and is not

an Outstanding Florida Water. After development occurs,

stormwater from the developed portions of the property will be

conveyed to a wet detention pond for required water qual ity

treatment and peak discharge rate attenuation. After

treatment in the detention pond, the water will discharge to

the on - site wetland, as it does now, and eventually will be

conveyed into the Lake. Off - site flows will continue to be

conveyed into the on - site wetland.

8. The wet detention pond, which has a minimum depth of

twelve feet and a permanent pool of water with a mean depth of

two to eight feet, has been designed to accommodate a 25 - year,

24 - hour storm. Post - development discharge will be les s than

pre - development, and the outfall structure has been designed

to avoid channelization in the wetlands after the point of

discharge.

9. Since at least the late 1940's, Petitioner, Shirley

B. Haynes, or her relatives, have owned, or resided on, a

mult i - acre tract of land just north of the project site at

2764 Lake Howell Lane. She has substantial frontage on the

south side of the Lake. The southern portion of her property,

which are wetlands, adjoins the northern boundary of the

project site. For th e past three years, Petitioner, Egerton

K. van den Berg, has resided on a ten - acre tract of land at

1245 Howell Point, which is northeast of the project site. He

has approximately 235 feet of frontage on the south side of

the Lake.

10. As argued in the ir Proposed Recommended Order,

Petitioners generally contend that the application is

"materially deficient" in several respects in violation of

Rule 40C - 4.101; that the Applicant has failed to satisfy Rule

40C - 4.301(1)(c) and (d), which in turn constitutes a failure

to meet the requirements of Rule 40C - 4.302(1)(a) - (c); that the

Applicant failed to satisfy the criteria in Sections

12.2.3(a) - (f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a) - (e),

12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the

Applicant's Ha ndbook: Management and Storage of Surface Waters

(Applicant's Handbook); that the District did not adequately

consider the cumulative impacts of the project as required by

Section 373.414(8)(a), Florida Statutes; that a low flow

analysis of the Lake was no t performed, as required by Rule

40C - 8.011(5); that the Applicant did not submit detailed

mitigation plans as required by Section 12.3.3.2 of the

Applicant's Handbook; that the 18:1 ratio for mitigation

proposed by the Applicant is inappropriate; and that the

District should not approve the density of the apartments

established by the City. These concerns, to the extent they

have been identified as issues in the parties' Pre - Hearing

Stipulation, are addressed in the findings below. Where

contentions have been raised by Petitioners, such as the

placement of the detention pond over a depressional area, and

they have not been argued in the Proposed Recommended Order,

they have been deemed to be abandoned.

B. Conditions for issuance of permits

11. Rule 40C - 4.301(1)(a) - (k), Florida Administrative

Code, specifies eleven substantive requirements for which

reasonable assurance must be given in order for a standard

permit to be issued. Subsection (3) of the same Rule provides

that the standards and criteria con tained in the Applicant's

Handbook shall determine whether the foregoing reasonable

assurances have been given. Additional conditions for the

issuance of a permit are found in Rule 40C - 4.302(1) when the

project, or any part of it, is located in, on, or ov er

wetlands or other surface waters. Therefore, because a part

of the Applicant's system will be located in wetlands, the

Applicant must also give reasonable assurance that the project

will not be contrary to the public interest, and that it will

not caus e unacceptable cumulative impacts upon the wetlands or

surface waters.

a. Rule 40C - 4.301

12. Paragraphs (a) - (c) of the Rule require that an

applicant provide reasonable assurance that the project will

not cause adverse water quantity impacts to receivin g waters

and adjacent lands, adverse flooding to on - site or off - site

property, or adverse impacts to existing surface water storage

and conveyance capabilities.

13. If a system meets the requirements of Section

10.2.1(a) through (d) of the Applicant's H andbook, there is a

presumption that the system complies with the requirements of

Paragraphs (a) through (c). This presumption has been met

since the evidence supports a finding that the post -

development peak rate of discharge will be lower than the pre -

d evelopment peak rate of discharge for a 24 - hour, 25 - year

storm event. Therefore, the Applicant's system meets the

requirements of these Paragraphs.

14. Paragraph (d) of the Rule requires that an applicant

give reasonable assurance that the project "wil l not adversely

impact the value of functions provided to fish and wildlife

and listed species by wetlands and other surface waters." To

satisfy this requirement, an applicant must also demonstrate

compliance with the two - prong test in Sections 12.2.2 and

12.2.2.4 of the Applicant's Handbook.

15. Section 12.2.2 requires that an applicant provide

reasonable assurance that a regulated activity will not impact

the values of wetlands and other surface water functions so as

to cause adverse impacts to the ab undance, diversity, and

habitat of fish, wildlife, and listed species. In its

proposal, the Applicant proposes to fill a total of 0.99 acres

of wetlands. Since these impacts will eliminate the ability

of the filled part of the on - site wetland to provide functions

to fish and wildlife, the filling will cause adverse impacts.

Under these circumstances, Section 12.2.1.1 requires that the

Applicant either implement practicable design modifications to

reduce or eliminate these adverse impacts or meet one of t he

exceptions under Section 12.2.1.2.

16. Under Section 12.2.1.1, a proposed modification

which is not technically capable of being done, is not

economically viable, or which adversely affects public safety

through the endangerment of lives or property is not

considered practicable.

17. The Applicant’s design for the proposed project went

through a number of iterations prior to submittal to the

District to reduce adverse impacts to the wetlands. During

the permitting process, the District requested th at the

Applicant consider a number of other suggestions to reduce or

eliminate the adverse impacts to wetlands such as adding a

fourth floor to the apartment buildings to eliminate the need

for one apartment building, building a parking garage for the

tena nts, and eliminating the tennis and volleyball courts.

Because the Applicant provided detailed reasons why none of

those suggestions were practicable, it was not required to

implement any of those design modifications. In addition, the

Applicant’s decisi on not to include a littoral zone around the

stormwater pond did not increase the amount of wetland impacts

as that engineering decision resulted in a stormwater pond

that was simply deeper and not wider. Therefore, the

Applicant has met the requirement t o reduce or eliminate

adverse wetland impacts.

18. Section 12.2.1.1 only requires an elimination and

reduction analysis when: (1) a proposed system will result in

adverse impacts to wetland functions and other surface water

functions so that it does not meet the requirements of

Sections 12.2.2 through 12.2.3.7, or (2) neither one of the

two exceptions within Section 12.2.1.2 applies.

19. In determining whether one of the two exceptions in

Section 12.2.1.2 applies, the District must evaluate the long -

te rm ecological value of the mitigation proposed by the

Applicant. If the mitigation is not adequate to offset the

adverse impacts of the proposed system, then it is unlikely

either exception in Section 12.2.1.2 will apply.

20. As noted above, the Applica nt’s proposed dredging

and filling of the southern edge of the wetlands on the

project site will eliminate the ability of that wetland area

to provide functions to fish and wildlife. However, the

Applicant’s mitigation plan of placing 17.8 acres of wetlan ds

and 1.2 acres of uplands under a conservation easement to

preserve that property in its natural state in perpetuity will

fully replace the types of functions that the part of the

wetlands proposed to be impacted provides to fish and

wildlife. The mitig ation plan will also offset the adverse

impacts that this project will have on the value and functions

provided to fish and wildlife by the impacted part of the

wetlands.

21. In this case, the first exception under Section

12.2.1.2(a) applies as it meets that Section's two

requirements: the ecological value of the functions provided

by the area of wetland to be adversely affected is low, and

the proposed mitigation will provide greater long - term

ecological value than the area or wetland to be adversely

aff ected.

22. Also, the quality of the wetland to be impacted is

low. All of the proposed impacts will occur in the area of

the wetland that was historically disturbed and in which

nuisance and exotic species are prevalent. Due to nuisance

and exotic vege tation, the ecological value provided by that

area to wildlife is low.

23. The mitigation for the proposed project will provide

greater long - term ecological value to fish and wildlife than

the part of the wetland proposed to be impacted because the

propo sed mitigation will preserve eighteen times more wetlands

that are of higher quality and provide greater value than the

wetland area to be impacted. The type of wetland to be

preserved, a mixed forested wetland containing hardwoods, is

rare for the area.

24. Although the mitigation plan will provide greater

long - term ecological value to fish and wildlife than the part

of the wetland proposed to be impacted, the Applicant did not

meet the second exception in the elimination and reduction

rule under Section 12.2.1.2(b) because the wetlands to be

preserved are not regionally significant.

25. In addition to meeting the elimination and reduction

rule through implementation of practicable design

modifications, the Applicant also satisfied the same rule by

meet ing the first exception found in Section 12.2.1.2(a).

Thus, the Applicant has satisfied Section 12.2.2, which is the

first prong of the test to determine compliance with Paragraph

(d).

26. The second prong of the test to determine whether

Paragraph (d) o f the Rule has been satisfied is found in

Section 12.2.2.4. That Section requires that an applicant

give reasonable assurance that the activity will not change

the hydroperiod of a wetland so as to affect wetland

functions. For the following reasons, t hat prong of the test

has been satisfied. Since the wetlands are primarily

groundwater - influenced, the construction of the stormwater

pond between the project and the wetlands will not adversely

affect the wetlands. As the soils surrounding the pond are

very porous with a high infiltration and percolation rate,

water from the stormwater pond will still reach the wetlands

through lateral seepage.

27. Further, the Applicant will install an energy

dissipating device on the outfall spout at the point of

disc harge so that water will be spread out from the stormwater

pond as it discharges into the receiving wetlands. As noted

earlier, this will prevent an adverse channelization effect.

28. Finally, stormwater runoff from the surrounding

basins that current ly discharge into the wetlands will not be

affected by the construction of the stormwater system. That

runoff will continue to flow into the wetlands on the project

site.

29. Because the Applicant has satisfied Sections 12.2.2

and 12.2.2.4, Paragraph (d ) of the Rule has been met.

30. Paragraph (e) of the Rule generally requires that an

applicant provide reasonable assurance that a project will not

adversely affect the quality of receiving waters. Here, the

Applicant has provided such assurance. This is because the

system has been designed in accordance with all relevant

District criteria. Also, the Applicant has proposed to revise

Permit Condition 26 as follows:

Condition 26. This permit authorizes

construction and operation of a surface

water manag ement system as shown on the

plans received by the District on June 14,

2001, and as amended by plan sheet C4

(Sheet 07 of 207) received by the District

on January 23, 2002.

In view of this revision, the Applicant's wet detention

system complies with all of the design criteria contained in

Rule 40C - 42.026(4).

31. Under Rule 40C - 42.023(2)(a), compliance with the

design criteria contained in Rule 40C - 42.026 creates a

presumption that state water quality standards, including

those for Outstanding Florida Wa ters, will be met. This

presumption has not been rebutted; therefore, the requirements

of Paragraph (e) of the Rule have been satisfied.

32. Further, S ections 12.2.4.1 and 12.2.4.2 state, in

part, that reasonable assurance regarding water quality must

be provided both for the short term and the long term,

addressing the proposed construction, alteration, operation,

maintenance, removal, and abandonment of the system. The

Applicant has provided reasonable assurance that this

requirement is met through t he design of its surface water

management system, its long - term maintenance plan for the

system, and the long and short - term erosion and turbidity

control measures it proposes. If issued, the permit will

require that the surface water management system be

constructed and operated in accordance with the plans approved

by the District. The permit will also require that the

proposed erosion and turbidity control measures be

implemented.

33. Section 12.2.4.5 does not apply because there are no

exceedances of any water quality standards at the proposed

receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not

apply because the Applicant has not proposed any docking

facilities or temporary mixing zones.

34. Paragraph (f) of the Rule requires that an applic ant

not cause adverse secondary impacts to the water resources.

Compliance with this requirement is determined by applying the

four - part test in Section 12.2.7(a) through (d).

35. As to Section 12.2.7(a), there are no secondary

impacts from construction, alteration, and intended or

reasonably expected uses of the proposed system that will

cause water quality violations or adverse impacts to the

wetland functions. The Applicant chose not to provide buffers

abutting the wetlands but rather chose measures o ther than

buffers to meet this requirement. The Applicant has provided

reasonable assurance that secondary impacts will not occur by

placing the stormwater pond between the planned project and

the wetlands, so that the pond itself will serve as a buffer

b y shielding the wetland from the lighting and noise of the

project, and by acting as a barrier to keep domestic animals

out of the wetlands. In addition, the Applicant increased the

amount of property to be preserved as mitigation by adding

2.97 acres of wetlands and 1.2 acres of uplands to the

mitigation plan to mitigate for any remaining secondary

impacts. Accordingly, the first part of the secondary impacts

test in Section 12.2.7(a) is satisfied.

36. As to Section 12.2.7(b), because there is no

eviden ce that any aquatic or wetland - dependent listed animal

species use uplands for existing nesting or denning adjacent

to the project, the second part of the test has been met. No

adverse secondary impacts will occur under the third part of

the test in Secti on 12.2.7(c) because the proposed project

will not cause impacts to significant historical or

archaeological resources. Finally, adverse secondary impacts

as proscribed by Section 12.2.7(d) will not occur because no

evidence was presented that there would be additional phases

or expansion of the proposed system or that there are any

onsite or offsite activities that are closely or causally

linked to the proposed system. Therefore, the proposed

project satisfies Paragraph (f) of the Rule.

37. Paragraph (g) of the Rule requires that an applicant

provide reasonable assurance that a project will not adversely

impact the maintenance of surface or ground water levels or

surface water flows established in Chapter 40C - 8. Minimum

(but not maximum) surface water levels have been established

for the Lake pursuant to Chapter 40C - 8 for the basin in which

the project is located. The project will not cause a decrease

of water to, or cause a new withdrawal of water from, the

Lake. Therefore, the project satisfies thi s requirement.

38. Finally, Petitioners have acknowledged in their

Proposed Recommended Order that the Applicant has given

reasonable assurance that the requirements of Paragraphs (h),

(i), (j), and (k) have been met. The parties have also

stipulated tha t the receiving water (Lake Howell) meets all

Class III water quality standards. Therefore, the project

satisfies the requirements of Subsection 40C - 4.301(2).

c. Rule 40C - 4.302 - Public Interest Test

39. Under Rule 40C - 4.302(1)(a)1. - 7., an applicant m ust

provide reasonable assurance that the parts of its surface

water management system located in, on, or over wetlands are

not contrary to the public interest. Similar requirements are

found in Section 12.2.3.

40. The Applicant has provided reasonable assurance that

the parts of the project that are located in, on, or over

wetlands (mainly the detention pond and fill) are not contrary

to the public interest, because the evidence showed that all

seven of the public interest factors to be balanced are

ne utral. Because the proposed permanent mitigation will

offset the project’s adverse impacts to wetlands, no adverse

effects to the conservation of fish and wildlife due to the

project’s permanent nature will occur. The evidence also

showed that best manag ement practices and erosion control

measures will ensure that the project will not result in

harmful erosion or shoaling. Further, it was demonstrated

that the project will not adversely affect the flow of water,

navigation, significant historical or arch aeological

resources, recreational or fishing values, marine

productivity, or the public health, safety, welfare or

property of others. Finally, the evidence showed that the

project’s design, including permanent mitigation, will

maintain the current condi tion and relative value of functions

performed by parts of the wetland proposed to be impacted.

Therefore, the project meets the public interest criteria

found in Rule 40C - 4.302(1)(a).

d. Rule 40C - 4.302(1)(b) - Cumulative Impacts

41. Rule 40C - 4.302(1)(b ) and Section 12.2.8 require that

an applicant demonstrate that its project will not cause

unacceptable cumulative impacts upon wetlands and other

surface waters within the same drainage basin as the regulated

activity for which the permit is being sought. Under this

requirement, if an applicant proposes to mitigate the adverse

impacts to wetlands within the same drainage basin as the

impacts, and if the mitigation fully offsets these impacts,

the District will consider the regulated activity to have no

un acceptable cumulative impacts upon wetlands and other

surface waters.

42. The Applicant has chosen to mitigate for the impacts

to 0.99 acres of wetlands by preserving 17.8 acres of wetlands

and 1.2 acres of uplands on - site. Since this mitigation will

occ ur in the same drainage basin as the impacts and the

mitigation fully offsets those impacts, the Applicant

satisfies the requirements of the Rule.

e. Rule 40C - 4.302 - Other Requirements

43. The parties have stipulated that the requirements of

Paragraphs (c) and (d) of Rule 40C - 4.302(1) do not apply.

44. There is no evidence that the Applicant has violated

any District rules or that it has been the subject of prior

disciplinary action. Therefore, the requirements of

Subsection (2) of the Rule have been met.

C. Miscellaneous Matters

a. County Pond Site

45. The Seminole County pond site located on the east

side of Lake Ann Lane and across the street from the project

is not a jurisdictional wetland and does not have any wetland

indicators. It is classif ied as an upland cut surface water.

46. The Applicant is not proposing to impact any

wetlands at the pond site, and the site is not part of the

proposed mitigation plan for the project.

47. The permit in issue here is not dependent on the

pond site, an d nothing in the application ties the project

with that site. Indeed, the transfer of density rights from

the County property is not relevant to the District permitting

criteria.

b. Review of Application

48. When the decision to issue the permit was m ade, the

District had received all necessary information from the

Applicant to make a determination that the project met the

District's permitting criteria. While certain information may

have been omitted from the original application, these items

were ei ther immaterial or were not essential to the permitting

decision.

49. The application complies with all District

permitting criteria. Contrary to Petitioners' contention, the

Applicant does not have to be the contract purchaser for

property in order to submit an application for that property.

Rather, the District may review a permit application upon

receipt of information that the applicant has received

authorization from the current owners of the property to apply

for a permit. In this case, the Appl icant has the permission

of the current owners (the Harold Kasik Living Trust).

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

51. As the applicant in this cause, KGB Lake Howell,

LLC, bears the burden of showing by a preponderance of the

evidence that it is entitled to the requested permit. See ,

e.g. , Cordes v. State, Dep't of Envir. Reg. , 582 So. 2d 652,

654 (Fla. 1st DCA 1991). The applicant's burden is one of

"reasonble assurances, not absolute guarantees." Manasota - 88,

Inc. v. Agrico Chemical Co. , 12 F.A.L.R. 1319, 1325 (Dep't of

Envir. Reg. 1990), aff'd 576 So. 2d 781 (Fla. 2d DCA 1991).

This means that the applicant must establish "a substantial

likelihood that the project will be successfully implemented,"

Metro Dade County v. Coscan Fla., Inc. , 609 So. 2d 644, 648

(Fla. 3d DCA 1992). This standard does not require an

absolute guarantee that a violat ion of a rule is a scientific

impossibility, only that its non - occurrence is reasonably

assured by accounting for reasonably forseen scientific

contingencies. Ginnie Springs, Inc. v. Watson , 21 F.A.L.R.

4072, 4080 (Dep't of Envir. Prot. 1999).

52. By a p reponderance of the evidence, the Applicant

has provided reasonable assurance that the applicable

requirements of the District's rules have been met and that a

standard Environmental Resource Permit should be issued to the

Applicant with the conditions pro posed by the District in the

draft permit dated October 8, 2001, with the modification to

Condition 26 referred to above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the St. John s River Water Management

District enter a final order granting the requested permit as

described above.

DONE AND ENTERED this 29th day of March, 2002, 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

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 2002.

COPIES FURNISHED:

Kirby B. Green, III, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 321 78 - 1429

Shirley B. Haynes

2764 Lake Howell Road

Winter Park, Florida 32792 - 5725

Egerton K. van den Berg

1245 Howell Point

Winter Park, Florida 32792 - 5706

Charles A. Lobdell, III, Esquire

St. Johns River Water Management District

Post Office Box 1429

P alatka, Florida 32178 - 1429

Meredith A. Harper, Esquire

Shutts & Bowen

Post Office Box 4956

Orlando, Florida 32802 - 4956

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.