02-000116 Joseph Belanger, Patricia Belanger, Jerome Strauss, And Susan Strauss vs. Conquest Developments Usa L.C., And South Florida Water Management District Status: Closed Recommended Order on Wednesday, July 24, 2002.

Summary: Applicant provided reasonable assurances that modification of existing surface water management system for residential subdivision satisfied all criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH H. BELANGER, PATRICIA )

BELANGER, JEROME STRAUSS, )

and SUSAN STRAUSS, )

)

Petitioners, )

)

vs. ) Case No. 02 - 0116

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT and )

CONQUEST DEVELOPMENTS USA, )

L.C., )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matte r was heard before the

Division of Administrative Hearings by its assigned

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

2002, in Naples, Florida.

APPEARANCES

For Petitioners: Anthony P. Pires, Jr., Esquire

Woodward, Pi res & Lombardo, P.A.

3200 Tamiami Trail North, Suite 200

Naples, Florida 34103 - 4105

Robert E. Murrell, Esquire

Samouce, Murrell & Francoeur, P.A.

800 Laurel Oak Drive, Suite 300

Naples, Florida 34108 - 2713

For Respondent: Keith W. Rizzardi, Esquire

(Agency) South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

For Respondent: Kenneth B. Cuyler, Esquire

(Applicant) Goodlette, Coleman & Johnson, P.A.

4001 Tamiami Trail North, Suite 300

Naples, Flo rida 34103 - 3556

STATEMENT OF THE ISSUE

The issue is whether an Environmental Resource Permit

should be issued to Conquest Developments USA, L.C.,

authorizing the modification of an existing stormwater

management system serving a residential development known as

Silver Lakes in Collier County, Florida.

PRELIMINARY STATEMENT

This matter began on August 15, 2001, when Respondent,

South Florida Water Management District, issued its Written

Notice of Intended District Decision on Permit Application

010223 aut horizing Respondent, Conquest Developments USA,

L.C., to modify an existing stormwater management system

serving a residential development in Collier County, Florida.

On December 13, 2001, Petitioners, Joseph H. Belanger,

Patricia Belanger, Jerome Strau ss, and Susan Strauss, who live

within the development, filed a Petition for Formal

Administrative Hearing challenging the issuance of the permit.

On December 17, 2001, Petitioners filed an Amended Petition

for Formal Administrative Hearing. The matter w as referred to

the Division of Administrative Hearings on January 9, 2002,

with a request that an Administrative Law Judge be assigned to

conduct a hearing.

By Notice of Hearing dated February 25, 2002, a final

hearing was scheduled on May 29, 2002, in Naples, Florida. At

the final hearing, Petitioners presented the testimony of Gary

L. Beardsley, an environmental consultant and accepted as an

expert, and Joseph H. Belanger. Also, they offered

Petitioners' Exhibits 2, 4 - 10, and 12 - 14, which were admit ted

into evidence. Respondent, South Florida Water Management

District, presented the testimony of Karen M. Johnson, an

environmental supervisor and accepted as an expert; Cory L.

Peck, an environmental scientist and accepted as an expert;

and Richard H. Thompson, a senior supervisor engineer and

accepted as an expert. Also, it offered District Exhibits A -

H, which were received in evidence. The parties also offered

Joint Exhibits 1 - 37, which were received in evidence.

Finally, the undersigned took offic ial recognition of certain

portions of Chapter 373, Florida Statutes; Chapter 62 - 340 and

Rules 40E - 4.054, 40E - 4.301, and 40E - 4.302, Florida

Administrative Code; and the Basis for Review for

Environmental Resource Permit Applications Within the South

Florid a Water Management District.

The Transcript of the hearing (two volumes) was filed on

June 23, 2002. Proposed Findings of Fact and Conclusions of

Law were filed by the South Florida Water Management District

and Petitioners on July 10 and 15, 2002, respec tively, and

they have been considered by the undersigned 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 environmental permitting d ispute, Respondent,

South Florida Water Management District (District), proposes

to issue an Environmental Resource Permit (ERP) to Respondent,

Conquest Developments USA, L.C. (Applicant), authorizing the

modification of an existing stormwater management s ystem

serving a private, gated residential community known as Silver

Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated

Collier County, Florida. As the agency responsible for the

administration of the ERP program, the District has the

authority to grant or deny the requested permit. Preliminary

action approving the application was taken by the District on

August 15, 2001.

2. Silver Lakes is a 146 - acre residential development

located adjacent to, and on the east side of, County Road 951

approxi mately 1.5 miles south of the intersection of U.S.

Highway 41 and County Road 951 in southwestern Collier County,

Florida.

3. The project site is a part of the larger development

and consists of approximately forty undeveloped acres (40 - acre

site) just north of, and adjacent to, the residential

community. If the application is approved, the Applicant

would be allowed to construct an open storage facility on a

7.02 - acre tract of land in the western part of the 40 - acre

site on which trailers, boats, motor homes, tow dollies, and

similar items will be stored. It would also allow the

Applicant to relocate previously permitted lots along the

southeastern boundary of the 40 - acre site which border the

Silver Lakes development.

4. Petitioners, Jerome and Susan Strauss, own Lots 14,

15, and 16 within Silver Lakes. Petitioners, Joseph H. and

Patricia Belanger, own Lot 26 within Silver Lakes, which is

adjacent to the proposed storage facility. For obvious

reasons, the Belangers do not wish to have a storage faci lity

next to their property. Rather, they and the other

Petitioners have suggested that the storage facility be

reduced in size and moved to a 3.0 - acre site in the

northeastern portion of the 40 - acre site. The parties have

stipulated that Petitioners hav e standing to bring this

action.

5. As reflected in the parties' Prehearing Stipulation,

Petitioners contend that the proposed construction of the

storage area will cause flooding, adverse secondary impacts,

and adverse water quantity impacts; that the pr oposed activity

will result in a violation of state water quality standards;

that the proposed system will cause adverse impacts to surface

water storage and conveyance capabilities, the value of

functions provided to fish and wildlife and listed species b y

wetlands and other surface waters, and the conservation of

fish and wildlife; that the Applicant has failed to minimize

or avoid impact to jurisdictional wetlands to the greatest

extent practicable; that the proposed site provides a wildlife

corridor con nected to protected lands directly to the west;

that the proposed site is jurisdictional wetlands; that the

Applicant has engaged in District activities without a permit;

and that the proposed site is subject to a Declaration of

Covenants, Conditions, and Restrictions. These objections,

where relevant, have been grouped into five categories -

wetlands, wildlife, secondary and cumulative impacts, water

quality and quantity, and prior enforcement activities - and

they are addressed separately below.

b. Wetl ands

6. The District has adopted and incorporated by

reference in Rule 40E - 4.091(1)(a), Florida Administrative

Code, a document known as the Basis of Review for

Environmental Resource Permit Applications Within the South

Florida Water Management District (Basis of Review). The

standards and criteria found in the Basis of Review are used

to determine whether an applicant has given reasonable

assurances that the conditions for issuance of an ERP have

been satisfied. Compliance with the criteria in the Basi s of

Review creates a presumption that the standard and additional

conditions for issuance of an ERP in Rules 40E - 4.301 and 40E -

4.302, Florida Administrative Code, respectively, have been

met. See Section 1.3, Basis of Review.

7. Section 4.2.1 of the Bas is of Review generally

requires that an applicant provide reasonable assurances that

wetland impacts be eliminated or reduced to the greatest

extent practicable. This can be done through the

implementation of "practicable design modifications" to the

proj ect, or where adverse impacts still remain after such

modifications, through mitigation.

8. There are 36.82 acres of wetlands throughout the 40 -

acre site. If the application is approved, there will be

adverse impacts to 9.9 acres of wetlands in the wes tern

portion of the site (where the storage facility will be

located) and to 3.37 acres in the southeastern portion of the

site.

9. To avoid and minimize wetland impacts, the Applicant

has been required to reduce the number of acres impacted from

its orig inal proposal, and to place the storage area on the

western part of the 40 - acre site near County Road 951. In the

original application, the Applicant proposed to place the

storage area in the eastern part of the site and to create a

larger storage area.

10. Although the western part of the 40 - acre site

contains higher quality wetlands than the central or eastern

parts, the western area is not pristine, and it is

substantially impacted by exotic species, such as wax myrtle

and Brazilian pepper. In addit ion, the western area is

adjacent to County Road 951, which reduces wetland functions

and values, reduces habitat values because of increased light

and noise encroachment, and increases risk to wildlife because

of passing vehicles. Further, the central an d eastern areas

are adjacent to other undeveloped lands, and this creates the

potential for larger tracts of preserved and enhanced wetlands

and maximizes wetland functions and values.

11. Impacts to wetlands will be adequately mitigated by

the Applicant preserving and enhancing 26.92 acres within the

40 - acre site in a recorded conservation easement; by

monitoring and reporting on the on - site mitigation (easement)

for a five - year period and by maintaining the property in

perpetuity; by purchasing 3.66 miti gation credits of similar

wetland habitat from the Panther Island Mitigation Bank; and

by adhering to a remediation plan (found in the Special

Conditions in the permit) to address any future deficiencies

in the mitigation.

12. Given these considerations, it is found that the

Applicant has provided reasonable assurances that the wetland

impacts from the proposed activities will be eliminated or

reduced as required by Section 4.2.1 of the Basis of Review.

c. Impact on Wildlife

13. Section 4.2.2 of the Ba sis of Review requires an

applicant to provide reasonable assurances that the activity

will not impact the values of wetlands and other surface water

functions so as to cause adverse impacts to the abundance,

diversity, or habitat of fish, wildlife, and li sted species.

14. The primary agency responsible for the protection of

wildlife is the Florida Fish and Wildlife Conservation

Commission (Commission), and not the District. Therefore,

Section 4.2.2 of the Basis of Review requires that the

District prov ide the Commission with a copy of all ERP

applications for its review and comment as to wildlife issues.

In this case, the Commission offered no comments or objections

regarding wildlife on the property in question.

15. The evidence shows that listed a nd endangered

species such as Florida panthers, wood storks, and Big Cypress

fox squirrels have been spotted on infrequent occasions on the

40 - acre site by residents of Silver Lake. However, the

parties stipulated that there was no evidence of any nesting ,

denning, or breeding activity on the same site. Based on the

evidence of record, including the Applicant's Protected

Species Survey, it is fair to infer that there is limited or

no use of the property by protected wildlife species. Indeed,

Petitioners' own expert found no evidence of endangered or

threatened species on the 40 - acre site during his two

inspections.

16. Two Special Conditions have been incorporated into

the permit to protect endangered, threatened, or other listed

species. First, in the event that Big Cypress fox squirrels

are observed on or near the property, Special Condition 24

requires that the Applicant prepare a habitat management plan,

in consultation with the Commission, to address issues related

to nesting habitat. Second, if an y endangered or threatened

species are ever found on the property, Special Condition 25

requires

that the Applicant coordinate with the Commission or the U.S.

Fish and Wildlife Commission for guidance or recommendations.

17. Given the above, the eviden ce supports a finding

that the Applicant has given reasonable assurances that the

requirements of Section 4.2.2 of the Basis of Review have been

satisfied.

e. Secondary and Cumulative Impacts

18. Section 4.2.7 of the Basis of Review requires that

an appl icant provide reasonable assurances that the proposed

activity will not cause adverse secondary impacts to the water

resources. At the same time, Section 4.2.8 requires that an

applicant provide reasonable assurances that a regulated

activity will not cau se unacceptable cumulative impacts to

wetlands and other surface waters within the same drainage

basin as the regulated activity for which the permit is being

sought. In providing the necessary reasonable assurances

regarding cumulative impacts, Section 4 .2.8.2 authorizes an

applicant to use preservation and mitigation measures to

prevent cumulative impacts.

19. The more persuasive evidence shows that the project

will not cause secondary impacts to wetlands. This is because

a water quality berm system su rrounds the wetlands, isolating

the wetland system from the surface water management system; a

50 - foot preserved area lies between the storage area and the

adjacent property boundary to the north; the storage area is

being placed in an area already seconda rily impacted by County

Road 951; and the wetland preservation area will be placed in

the conservation easement.

20. Further, the project will not cause secondary

impacts to wildlife. This is because structural buffers will

prevent future encroachment into the wetlands and distance any

wildlife away from the more dense residential functions.

These buffers include a 50 - foot wide natural preserve on the

north side of the storage area (Special Condition 26), an

already - erected structural buffer to the sou th of the storage

area (Special Condition 26), and a 17 to 21 - foot structural

buffer (planted with native vegetation or vegetated buffers)

on the eastern side of the 40 - acre site where the new lots are

proposed. Except for two conclusionary opinion statem ents by

Petitioners' expert, without further facts or explanation, no

other evidence on secondary impacts was offered.

21. The project will not cause cumulative impacts to the

wetlands. This is because the proposed mitigation for the

project adequately o ffsets the impacts of the 40 - acre site,

and the impacts from other permitted projects in the basin

area have been sufficiently offset. In addition, very little

property in the area remains to be developed, and there are no

new applications before the Dist rict involving the same basin.

In the event a new application may be filed, however, the

District will require the applicant to offset any impacts

associated with its project with buffers and conservation

easements, like the Applicant in the instant case.

f. Water Quantity and Quality

22. Section 5.0 et. seq. of the Basis of Review contains

water quality criteria that must be satisfied in order for an

ERP to be issued, while Section 6.0 et. seq. addresses water

quantity criteria for an ERP. Given the limited nature of

changes to the existing system and the lack of a hydrologic

connection to the wetlands, and for the following additional

reasons, the Applicant has given reasonable assurances that

the project complies with the water quality and quantity

criteria.

23. The project as designed includes a grass swale near

the storage area on the western part of the 40 - acre site. The

rainfall and run - off from the storage area flows into an

internal road, through the grass swale, into a storm drain,

and then into the pre - existing water management system

associated with the original permit for Silver Lake.

24. The project also allows rainfall and run - off from

the proposed lots on the southeastern border of the 40 - acre

site to sheetflow onto an internal road, w here waters are

collected in existing catch basins and conveyed into the

previously permitted water management system associated with

the original permit.

25. Since the rainfall and run - off from the storage area

and lots drain into the existing lakes (Lak es 1 and 2) that

are part of the Silver Lakes water management system, those

waters will be treated for water quality through wet detention

before their eventual discharge to McIlvane Bay, which lies to

the southwest of Silver Lake.

26. The basin discharg e rates, minimum floor elevations,

road designs, parking lot designs, structure control

elevations, and structure sizes are specified in the the

District's Staff Report, and were set at or above the

calculated design limitations to meet water quality and

q uantity requirements.

27. Section 5.2.1(a)1. of the Basis of Review specifies

that wet detention volume shall be provided for the first inch

of runoff from the developed project. The evidence shows that

the proposed system captures one inch of run - off ov er the

entire site, which drains into the existing lake system to

provide water quality treatment.

28. The system is also designed to meet the relevant

discharge rate requirements for a 25 - year, 3 - day storm event,

and the minimum floor elevations were bas ed on a 100 - year, 3 -

day storm event.

29. The wetland preserve area is outside the area served

by the surface water management system, is not hydrologically

connected to that system, and will not be affected by run - off

from the storage area or lots.

30. Just prior to the final hearing, the District added

Special Condition 23 to create a 50 - foot buffer zone along the

southern boundary of the storage area for aesthetic purposes

and to reduce secondary impacts. Implementation of that

buffer must be in acco rdance with the staff report, will not

change the surface water management system, will have no

impact on water quality or flood control, and will be

implemented after additional consultation with the District.

g. Past Enforcement

31. Rule 40E - 4.302(2) , Florida Administrative Code,

requires that the District take into consideration past

violations of various rules adopted by the District. No

enforcement action relating to the property has ever been

taken by the District against the Applicant for any vi olation

of ERP requirements.

32. Although Petitioners suggested that unpermitted fill

activities have taken place on the southeastern part of the

40 - acre site, an inspection by District personnel revealed

that unpermitted activities were "not significant. " Further,

Special Condition 23 requires that the Applicant restore "that

portion of the disturbed wetland area located in the southeast

corner of the site which is to be included in the wetland

preserve area." Therefore, any impacts to the 40 - acre site

resulting from past unpermitted activities have been

considered and remedied.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

34. As the applicant in this cause, Conquest

Developments USA, L.C., 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.

Re g. , 582 So. 2d 652, 654 (Fla. 1st DCA 1991).

35. The issuance of an ERP is governed by Chapter 373,

Florida Statutes, Chapters 40E - 4 and 40E - 400, Florida

Administrative Code, and the Basis of Review. In general

terms, an applicant must give reasonable as surance that the

conditions for the issuance of an ERP have been met.

Reasonable assurance contemplates a substantial likelihood

that the project will be successfully implemented.

Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d

644, 648 (Fla . 3d DCA 1992); City of Newberry v. Watson

Construction Co., Inc. et al. , 19 F.A.L.R. 2067, 2080 (DEP

1996). However, the reasonable assurance standard does not

require an "absolute guarantee" of compliance with

environmental standards. Save our Suwannee v. Dep't of Envir.

Protection and Piechocki , 18 F.A.L.R. 1467, 1472 (DEP 1996);

Manatee - 88, Inc. v. Agrico Chemical Co. and Fla. Dep't of

Envir. Regulation , 12 F.A.L.R. 1319 (DER 1990); Hoffert v. St.

Joe Paper Co. et al. , 12 F.A.L.R. 4972 (DER 1990).

3 6. By a preponderance of the evidence, the Applicant

has established that the proposed modifications to the

existing system comply with all requirements of Chapter 373,

Florida Statutes, the associated rules in Chapters 40E - 4 and

40E - 400, Florida Administ rative Code, and the Basis of Review.

Therefore, the Applicant is entitled to the issuance of an

ERP.

37. Finally, ongoing litigation in Circuit Court between

Petitioners and the Applicant concerning ownership of the 40 -

acre site, and determinations by t he Collier County Planning

Commission and Collier County Environmental Advisory Council

concerning the need for a 7.02 - acre storage facility, are not

relevant to this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions

of Law, it is

RECOMMENDED that the South Florida Water Management

District enter a final order granting Permit Application No.

010223 - 5 of Conquest Developments USA, L.C., for an

Environmental Resource Permit.

DONE AND ENTERED this 24th day o f July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 24th day of July, 2002.

COPIES FURNISHED:

Henry Dean, Executi ve Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

Anthony P. Pires, Jr., Esquire

Woodward, Pires & Lombardo, P.A.

3200 Tamiami Trail North, Suite 200

Naples, Florida 34103 - 4105

Robert E. Murre ll, Esquire

Samouce, Murrell & Francoeur, P.A.

800 Laurel Oak Drive, Suite 300

Naples, Florida 34108 - 2713

Keith W. Rizzardi, Esquire

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

Kenneth B. Cuyler, Es quire

Goodlette, Coleman & Johnson, P.A.

4001 Tamiami Trail North, Suite 300

Naples, Florida 34103 - 3556

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.