03-002838 Brian Diventura vs. The Gables At Stuart And South Florida Water Management District Status: Closed Recommended Order on Friday, March 17, 2006.

Summary: Petitioner met the Environmental Resource Permit criteria for a surface water management system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN DIVENTURA, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2838

)

THE GABLES AT STUART and )

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

_ )

RECOMMENDED ORDER

On November 29, 2005, a final hearing was conducted in

this case in Palm Beach County, Florida, before J. Lawrence

Johnston, a duly - appointed Administrative Law Judge (ALJ) with

the Division of Administrative Hearings (DOAH), pursuant to

Sections 120.569 and 120.57, Florida Statutes (2005).

APPEARANCES

For Petitioner: Brian DiVentura, pro se

377 Northwest Canna Way

Jensen Beach, Florida 34957 - 3518

For Respondent The Gables at Stuart:

Donna Holshouse r Stinson, Esquire

Broad and Cassel

Post Office Drawer 11300

Tallahassee, Florida 32302 - 1300

For Respondent South Florida Water Management District:

Ashley D. Fos ter, Esquire

Office of the General Counsel

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

STATEMENT OF THE ISSUE

This case involves a third - party challenge to South

Florida Water Management District's (District's) proposed

issuance of Amended Environmental Resource Permit number 43 -

01438 - P (ERP) for conceptual approval for a surface water

management (SWM) system to serve 80.71 acres of residential

development known as The Gables at Stuart and 1.42 acres of

the entrance road easement. The issue to be decided by the

ALJ is whether The Gables at Stuart (The Gables) provided

reasonable assurances that the proposed development will not

be harmful to the water resources of the District, and will

comply with the water quantity, environmental and water

quality criteria of the District's ERP regulations set forth

in Part IV of Chapter 373, Florida Statutes, in Florida

Administrativ e Code Chapter 40E - 4, and in the Basis of Review

for ERP Applications (BOR) (collectively referred to as the

ERP criteria). 1

PRELIMINARY STATEMENT

On December 4, 2000, E. Clark Gibson (Gibson) submitted

an application for approval of a conceptual plan for a SWM

system to serve 99.25 acres of residential and commercial

development, known as Gables at Stuart (Gables). The District

submitted Requests for Additional Information ("RAIs") on:

January 3, 2001; December 28, 2001; April 9, 2002; June 19,

2002; and April 1, 2003. Gibson submitted responses to the

District's RAIs on: November 30, 2001; March 11, 2002; May

21, 2002; March 3, 2003; and May 5, 2003.

On June 30, 2003, the District served its Notice of

Intended Agency Action (Staff Report), which reco mmended

conceptual approval, with conditions. On July 10, 2003, the

District's Governing Board approved the Staff Report to issue

Conceptual ERP Permit No. 43 - 01438 - P, Application No. 001204 -

6.

On July 21, 2003, the Haney Creek Greenway Group

(Greenway Group), Keith Kopp (Kopp), and Brian DiVentura

(DiVentura) challenged the intended issuance of the ERP

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

and Rule 40E - 1.521. On August 1, 2003, the District

transmitted their Request for Administ rative Hearing

(Petition) to DOAH for assignment of an ALJ.

The case was initially set for final hearing in West Palm

Beach on October 22 - 23, 2003, but Gibson moved to dismiss the

Greenway Group and Kopp for lack of standing, and the parties

moved for a continuance.

The Order on Motion to Dismiss entered on October 17,

2003, dismissed the Greenway Group with prejudice, dropped it

as a party, and dismissed Kopp with leave to amend to allege

facts to establish his standing. The final hearing was

continue d until November 19 - 20, 2003, and an Amended Petition

was filed on October 27, 2003.

On November 5, 2003, all parties but Gibson moved for

another continuance. On November 7, 2003, Gibson filed a

Motion to Strike and Motion in Limine. On November 12, 2 003,

the final hearing was continued again, until January 7 - 8,

2004. The Order Partially Granting Motions to Strike and In

Limine, entered on November 26, 2003, struck allegations that

Gibson's project site should be made part of a proposed

greenway, unle ss inclusion of the site in the proposed

greenway is part of the overall objectives of the District.

On December 29, 2003, the parties requested another

continuance, and the final hearing was continued again, until

March 2 - 3, 2004.

On February 17, 2004 , Gibson filed an unopposed motion

requesting that the case be held in abeyance because of

application modifications required to address permitting

issues with local governments. The case was placed in

abeyance on February 18, 2004, and remained in abeyan ce for

over a year and a half. While the case was in abeyance, the

District submitted an RAI on the modified application on March

11, 2004, and Gibson submitted a response to the RAI on

October 13, 2004. Gibson also filed an amended application on

that d ate, which reflected The Gables' purchase of the

property from Gibson. The Gables' Motion for Substitution of

Parties to reflect the new applicant was granted on December

14, 2004.

While the case remained in abeyance, the District also

submitted RAIs to the modified site plans on November 12,

2004, and March 2, 2005. The Gables submitted responses to

the RAIs on: January 31, 2005; May 3, 2005; May 5, 2005; May

6, 2005; and June 1, 2005. The Gables also further amended

its application on on January 31, 2005.

The District executed and filed with DOAH an Amended

Staff Report on September 8, 2005, authorizing conceptual plan

approval with conditions for a SWM system to serve 80.71 acres

of residential development, known as Gables at Stuart and 1.42

acres of the entrance road easement, for a total permitted

area of 82.13 acres. The revisions in the Amended Staff

Report include elimination of the commercial tract along

Jensen Beach Boulevard, modification to the location of storm

water lakes (which decreas ed wetland impacts), and

modification of the mitigation plan to acknowledge the

potential, future location of the Green River Parkway on the

Gables property. The Gables also raised the elevation of the

berm along the western boundary of the multi - family

r esidential area and east of Wetland 7C to elevation 17.8 feet

to match the peak permitted stage within the adjacent

Pineapple Plantation development. 2

The case was rescheduled for a final hearing on

November 29 - 30, 2005.

On October 21, 2005, Kopp and D iVentura moved for a

continuance over objection. Keith Kopp voluntarily dismissed

his Amended Petition on November 1, 2005, and was dropped as a

party. DiVentura's motion for continuance was denied.

The parties' Joint Prehearing Stipulation was filed

N ovember 21, 2005. At the outset of the final hearing

conducted on November 29, 2005, the District's Motion to Take

Judicial Notice, also filed November 21, 2005, was granted,

and the attached, pertinent statutes and rules were officially

recognized. Join t Exhibits 1 through 6 were received in

evidence. (Joint Exhibit 1 is a composite exhibit consisting

of the entire permitting file.) The Gables called: Thomas

McGowan as an expert witness in engineering, site development

and water management systems; an d James Hudgens as an expert

witness in biology, ecology, environmental resource

permitting, and wetlands analysis and impact. The District

called: Anthony Waterhouse as an expert witness in surface

water management engineering and interpreting the Distr ict's

ERP and BOR criteria; and John Meyer as an expert witness in

interpreting and applying the District's ERP and BOR criteria,

wetland ecology, wetland biology, wetland delineation, and

wetland mitigation. DiVentura presented his case through

cross - exa mination and his own testimony. He called no other

witnesses. Rulings on relevance objections to Petitioner's

Exhibits 10 and 12 were reserved; at this time, those

objections are sustained. Petitioner's Exhibit 20 was

received, limited to pages 2 and 25 .

After presentation of the evidence, the District ordered

a transcript of the hearing, and the parties stipulated to 40

days from the filing of the transcript for the filing of

proposed recommended orders (PROs). The Transcript (in two

volumes) was fil ed on January 4, 2006, making PROs due on

February 13, 2006. The Gables and the District timely filed

PROs, but the Petitioner did not file a PRO.

FINDINGS OF FACT

A. The Parties and Proposed Project

1. The Gables project site is located within the

j urisdictional boundaries of the District in Martin County,

Section 20, Township 37 South, Range 41 E, bordered to the

north by Jensen Beach Boulevard and a 18.64 - acre tract of

commercial property that was previously included in the

proposed project. To th e west and partially to the south is

the Pineapple Plantation residential development, and to the

east is the Pinecrest Lakes residential development.

2. The Petitioner resides in the Pineapple Plantation

development which borders the Gables site.

3. T he Gables project site contains 29.54 acres of

wetlands; 26.86 of these will be preserved onsite.

Additionally, the project will include a conservation easement

encompassing 32.7 acres which covers both wetlands and

uplands. Development on the site will cover only 28.04 acres;

the remaining acreage which is not under a conservation

easement will nonetheless be preserved. Wetlands 1, 2, 3, and

4, which are the larger, higher quality wetlands on the site,

will be entirely preserved, except for a 0.11 acre area in the

southeast corner of wetland 1, where a berm will be

constructed. All direct wetland impacts will result from

construction of the multi - family housing and its access road

on the northern portion of the site. These wetlands are in a

more degrad ed condition than are the wetlands to the south,

which are being preserved.

4. The site includes the alignment of the proposed

“Green River Parkway” for which Martin County has submitted a

permit application. Although this area and the area to the

east of it will be preserved by the Gables, no mitigation

credit is given by the District. In fact, portions of

wetlands 5 and 6 that are east of the proposed alignment have

been considered by the District as secondarily impacted due to

the fragmentation and size reduction expected to result from

construction of the Parkway even though they are not impacted

by the Gables project itself.

5. The site is characterized by pine flatwoods and wet

prairies typical of those found along the upper edges of the

Savannas in Martin and St. Lucie Counties. The Gables project

site is undeveloped but has been hydrologically altered in

some areas by offsite conditions. In particular, a large

ditch on the west side of the Pinecrest Lakes property

adjacent to the eastern bound ary of the subject property

presently exerts adverse hydrologic affects, as does the

entire Pinecrest Lakes development.

6. There is an existing culvert outfall across Jensen

Beach Boulevard in the northwest corner of the 18.64 - acre

commercial property to the north. Runoff from a portion of

Jensen Beach Boulevard and undeveloped portions of the West

Jensen project are conveyed into the commercial property by

this culvert. This runoff then flows easterly and south

within the commercial property and, ult imately, under an

existing unpaved road used to access two Martin County Utility

potable wells located in the eastern project area. The

previously referenced north - to - south ditch located along the

western edge of the adjacent Pinecrest Lakes project direc ts

this flow southerly into the Pinecrest Lakes Phase I SWM

system. A ridge traversing the northern portion of the Gables

project site from west to east prevents appreciable volumes of

this off - site discharge from reaching wetlands south of this

ridge.

7. In general, wetlands found over the southwestern one -

half of the Gables project site are in very good condition,

displaying healthy and appropriate vegetation and water

levels. The northeast one - half was observed to have

significantly less standing wa ter when inspected, and

vegetation appeared to be transitioning to less water - tolerant

species such as slash pines.

8. The southern portion of the Gables project site

consists largely of wetlands. Wetlands designated as Wetlands

4 and 7B extend off - sit e westerly into the neighboring

Pineapple Plantation development.

9. The northernmost 18.64 acre commercial portion of the

July 2003 Gables project site has been removed. The

commercial portion will require a separate permit prior to any

development on that parcel.

10. The Gables has proposed an exfiltration trench to

provide runoff from its multi - family section, which is on the

northern portion of the site, with dry pre - treatment equal to

one - half inch over the area prior to discharge into the maste r

SWM system. An exfiltration trench consists of buried

perforated piping surrounded by gravel which allows runoff to

be filtered and treated before exiting the system.

11. The southernmost area of the Gables development is

to consist of single - family re sidential development located in

an upland peninsula in the central western portion of the

overall Gables project site. This area will be surrounded by

a retaining wall. Runoff from the lots and the access road

within the single - family area will be direc ted to the wet

detention lakes of the master SWM system.

12. The master SWM system water quality and storm

attenuation facilities include 2.415 acres of wet detention

pond to be located in the central eastern project site area,

as well as dry detention ar eas, swales and the exfiltration

trench located within the project. Discharge from the master

SWM system is into the adjacent Pinecrest Lakes development

within a previously established drainage easement.

13. The revised conceptual design for the Gables project

site continues to re - route the existing historical off - site

discharge from West Jensen and Jensen Beach Boulevard

southward to the on - site wetlands through a dedicated culvert

conveyance that will commence at the northern boundary of the

revised Ga bles project site area. Conveyance through the

formerly included commercial tract will be through existing

wetlands. The master SWM system conceptual design will

continue to utilize a cascading wetland system, cascading from

west to east in accordance wi th the natural hydrology of the

site, with final connection into the master SWM wet detention

pond.

14. As the Gables application is for a conceptual permit

only, final construction details are not required to be

presented at this time, and modification s are to be expected

when the applicant files an application for a construction

permit.

B. Conditions For Issuance

15. In order to obtain an ERP, an applicant must satisfy

the conditions for issuance set forth in Rules 40E - 4.301 and

40E - 4.302. The Condi tions for Issuance primarily focus on: a)

water quantity, b) wetland environmental values, and c) water

quality.

(i) Water Quantity

16. Under Rule 40D - 4.301(1), 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 caus e adverse impacts to

existing surface water storage and

conveyance capabilities.

17. The Applicant has demonstrated through hydrological

analysis, which takes into consideration the systems on the

surrounding properties, the hydrologic inflow from the n orth,

from the West Jensen project, that the proposed project will

not cause flooding to on - site or off - site property.

18. Petitioner alleged that the proposal to install a

berm around wetland 7 on the Gables property would cause

flooding into Pineapple Plantation. But the evidence was that

Pineapple Plantation’s SWM system, as permitted, was intended

to contain the runoff within the boundaries of Pineapple

Plantation’s property, including the small portion of wetland

7 that straddles the property line b etween Pineapple

Plantation and The Gables. To accomplish this, permission was

obtained from Mr. Gibson to install a berm on his property.

However, the berm was never installed. The Gables now

proposes to install the berm that was supposed to have been

there since Pineapple Plantation was permitted. The proposed

berm would be established at an elevation sufficient to

control runoff produced by a 25 - year rainfall event and

maintain the previously - established hydrologic divide. For

these reasons, install ation of the proposed berm, which is

necessary to make The Gables' proposed SWM system function

properly, will not cause adverse flooding to the Pineapple

Plantation.

19. For various other reasons, Petitioner also alleged

that The Gables project will lo wer wetland water levels in

Pineapple Plantation, as well as on the Gables property,

having adverse impacts on the quality of those wetlands.

Petitioner did not present any expert opinion to support his

allegations. Instead, he primarily pointed out what he termed

"anomalies" in the permit file during cross - examination of

expert witnesses for The Gables and the District. In most

instances, the expert witnesses explained that Petitioner was

mistaken. In every instance where Petitioner had detected an

act ual "anomaly," the experts explained that they were

insignificant for purposes of the permitting criteria.

20. The Gables provided reasonable assurances that it

will not cause adverse impacts to existing surface water

storage and conveyance capabilities through the determination

of appropriate wetland control elevations which are based on

wet season water levels.

21. Petitioner raised a question regarding aquifer

recharge, which is a consideration under Section 6.10(e) of

the BOR, which requires the p roject to be designed to

"preserve site ground water recharge characteristics." The

project is designed so that water tables are preserved or even

raised. It is also designed to preserve the significant

wetland features of the site. There are large area s of

contiguous areas of wetland and upland habitat which can

function as groundwater recharge. The exfiltration trenches

make runoff also available to the aquifer for storage. The

lakes are not lined, so the water in the lake can leak out.

Based on vol umetric calculations, the site will have more

water post - development than predevelopment. The types of

regional investigations of aquifer recharge capabilities and

impacts cited by Petitioner were relevant to consideration of

groundwater withdrawal issues , not surface water management

design.

22. In conclusion, The Gables provided reasonable

assurances that it would comply with the District rules

pertaining to water quantity and flood control pursuant to

Rule 40E - 4.301(1)(a),(b), and (c) and the BOR.

(ii) Value Of Functions Of Wetlands

23. Rule 40E - 4.301(1)(d) requires an applicant to

provide reasonable assurances to demonstrate that its proposed

project will not adversely impact the value of functions

provided to fish and wildlife and listed species by wetlands

and other surface waters.

24. The wetlands generally located on the north side of

the Gables project site are in a more degraded condition than

the wetlands to the south. Wetlands generally located over

the southerly extent of the site are adequately hydrated and

possess high - quality vegetation associations consisting of St.

John's wort, maidencane, yellow - eyed grass, and beak rush.

This habitat lends itself to utilization by a variety of

wading birds, raptors, snakes, and small mammals suc h as

raccoons, bobcats, armadillos, opossums, and feral pigs. In

contrast, Wetlands 5, 6, and 7 on the north side exhibit

slight - to - significant hydrologic and vegetation changes due to

the adjacent Jensen Beach Boulevard and Pinecrest Lakes

development to the north and east, respectively.

25. The Gables is proposing both wetland and upland

preservation. A mosaic of uplands and wetlands together

enhances the value of both and provides a good habitat for

wildlife. Mixing upland preservation mixture with wetland

preservation increases the value of the wetlands because

uplands support wetland habitat, and the “ecotone” at the edge

of the upland and wetlands provides the most valuable part of

the habitat. The value of preserving this area outweighs

potenti al preservation of the less valuable wetlands to the

north, which will be impacted by the multi - family portion of

the project.

26. The Gables has provided reasonable assurances to

demonstrate that the value of functions provided by wetlands

and other su rface waters will not be adversely affected.

(iii) Water Quality

27. Rule 40E - 4.301(1)(e) requires an applicant to

provide reasonable assurances that the proposed project will

not adversely affect the quality of receiving waters such that

state water q uality standards will not be violated.

28. Section 5.2.1 of the BOR requires that retention,

detention, or both retention and detention be provided in the

overall system in one of the following three ways or

equivalent combinations thereof:

1. Wet dete ntion volume shall be provided

for the first inch of runoff from the

developed project, or the total runoff of

2.5 inches times the percentage of

imperviousness, whichever is greater.

2. Dry detention volume shall be provided

equal to 75 percent of the ab ove amounts

computed for wet detention.

3. Retention volume shall be provided

equal to 50 percent of the above amounts

computed for wet detention. Retention

volume included in flood protection

calculations requires a guarantee of long

term operation and maintenance of system

bleed - down ability.

29. The Gables has proposed an exfiltration trench

system for the multi - family parcel and a lake system to handle

runoff from the overflow and from the single - family portion of

the project. With these faciliti es in place, runoff from the

proposed development will be treated before any stormwater is

discharged off site. Calculations were performed to ensure

that the project is engineered to meet these criteria.

30. Petitioner suggested that the project may r equire

more exfiltration trench than in the current plans, due to

compaction of the soil from construction activities, which may

affect permeability. However, Petitioner presented no

evidence to support this suggestion. The expert witness for

the Gables explained that compaction usually affects the top

two feet of the soil profile, whereas the exfiltration

trenches are designed to be 4 - 5 feet below the ground surface

and probably will function as expected. In any event, when a

construction permit is soug ht, final testing will be performed

and additional trench will be installed if necessary. The

project will accommodate double the amount of exfiltration

trenching in the conceptual plan.

31. The Gables has provided reasonable assurances to

demonstrate t hat the project will not adversely affect the

quality of receiving waters such that State water quality

standards will not be violated.

(iv) Reduction And Elimination

32. Section 4.2.1 BOR requires that practicable design

modifications be explored to re duce or eliminate adverse

impacts to wetlands and maximize functions provided by

wetlands on the project site.

33. The applicant explored all practicable alternatives

in order to reduce or eliminate wetlands impact.

34. In 2000, the Applicant proposed approximately 7.5

acres of wetland impact. In 2001, the Applicant submitted a

plan to the District that preserved part of Wetland 5 and

impacted the remainder of Wetland 5 by dredging a lake. The

current application proposes preserving more of Wetland 5 and

three smaller lakes, rather than a single lake, which has the

effect of further decreasing wetland impacts

35. The site plan was also modified to address flowage

from north of Jensen Beach Boulevard to the south, thereby

reducing secondary impacts to all the wetlands that are now

being preserved. In addition, a retaining wall has been added

around much of the development to offset secondary impacts,

and additional buffers have been put in place. Finally, as

noted above, the preservation of a large t ract of mixed upland

and wetlands is more beneficial than preservation of a small

amount of degraded wetlands.

36. Conceivably, wetland impacts could be further

reduced or eliminated by further decreasing the amount of

development. But given the presen t layout of the proposed

site plan, a further reduction would not be considered

practicable. Therefore, The Gables has adequately applied the

reduction and elimination criteria as required by the BOR and

the District's regulations.

(v) Secondary Impacts

37. Secondary impacts are indirect impacts that are

reasonably expected to occur as a result of development. Rule

40E - 4.301(1)(f) and Section 4.1.1(f) of the BOR require an

applicant to provide reasonable assurances that the proposed

activities will not cause adverse secondary impacts to the

water resources.

38. The District conducted a secondary impact analysis

and assessed secondary impacts to wetlands 5, 6, and 7. A

small portion of wetland 1, which extends off - site, was also

assessed as a seconda ry impact because approximately half an

acre of it is cut off by a proposed berm.

39. Pursuant to Subsection 4.2.7(a) of the BOR, a 25 -

foot buffer is required around a wetland to prevent secondary

impacts. Except for the small portion of wetland 1 discus sed

above, wetlands 1, 2, 3, and 4 will not be secondarily

impacted because each wetland has at least a 25 - foot buffer

and, in some cases, a retaining wall.

(vi) Mitigation

40. An applicant is required to mitigate for secondary

impacts as well as for di rect wetlands impacts. 3 The Gables

is providing a conservation easement in favor of the District

to include 18.26 acres of high - quality uplands and 20.8 acres

of high - quality wetlands, though mitigation credit is being

allowed by the District for only 5.7 9 acres of the upland

portion. The value and importance of a conservation easement

is that it provides reasonable assurances that a resource will

not be developed in the future. Inclusion of uplands in a

conservation easement is particularly valuable bec ause

development of uplands ordinarily would be more likely, and

because combining wetlands and uplands in a conservation

easement has the effect of enhancing the value of the wetlands

by encouraging their use by wildlife.

41. Under Section 373.414, F lorida Statutes, the Uniform

Mitigation Assessment Method (UMAM), which is implemented

through Rule Chapter 62 - 345, wetland impacts from the proposed

project will result in 2.63 units of functional loss, while

proposed mitigation will provide 2.87 units of functional

gain. This UMAM analysis demonstrates that the proposed

mitigation offsets wetland impacts.

42. Petitioner questioned whether The Gables and the

District properly applied Rule 62 - 345.600(3)(c) in determining

the amount of required mitigatio n. Specifically, Petitioner

contended that, since The Gables is not using a mitigation

bank or a regional offsite mitigation area as mitigation, the

acreage of mitigation required to offset wetland impacts was

to be calculated by dividing functional loss (FL) by relative

functional gain (RFG). However, Petitioner did not explain

what the result would be if this calculation were made.

Meanwhile, the expert witnesses for both the District and The

Gables interpreted the language of the Rule to provide that

one divides FL by RFG to determine acres of mitigation

required only when one discrete area is being impacted and

another discrete area is serving as mitigation, which is not

the case here. According to the experts, the second sentence

of subparagraph (3) (c) explains that, when there is more than

one impact or mitigation assessment area, total functional

loss and total RFG for each assessment area is determined by

summation of the FL and RFG for each assessment area. While

the language of the Rule is conf using, the expert testimony is

credited and accepted as providing a logical and correct

interpretation.

43. The BOR specifically provides in Section 4.3.1.2

that mitigation is best accomplished on - site or in close

proximity to the area being impacted. In this case, all of

the mitigation proposed is onsite. 4

44. Section 4.2.2 of the BOR provides that as part of

the District's assessment of impacts of regulated activities

upon fish and wildlife and their habitats, the District will

provide notice of E RP applications to the Florida Game and

Freshwater Fish Commission (now the Fish and Wildlife

Commission, or FWC) for its review and comment. The FWC did

not comment on the Gables at Stuart application.

45. The U.S. Fish and Wildlife Service wrote a le tter to

the U.S. Army Corps of Engineers in 2003, stating that it did

not object to the applicant’s wetland impacts and proposed

mitigation plan for the proposed project.

46. The Gables provided reasonable assurances that

mitigation will offset all impa cts to wetlands.

C. Petitioner's Extrapolation from Well Permitting Concerns

47. Petitioner's testimony at final hearing revealed his

challenge was motivated by his belief that, because the

District has denied applications for permits to withdraw

substa ntial amounts of groundwater in the region, in part due

to potential impacts on surficial aquifer and wetlands, it

does not make sense to allow any impacts to wetlands in SWM

permitting. However, SWM permitting is governed by the

criteria discussed above, not the criteria of consumptive use

permitting. In addition, the potential impacts of massive

consumptive use of groundwater cannot be compared to wetland

impacts of the Gables proposal. Finally, as indicated, The

Gables has established water table elev ations for resulting

wetland systems based on the existing condition of those

wetlands. In some places, The Gables has proposed to raise

water levels to benefit the wetlands and raise the water table

above what it has been historically, primarily along th e

eastern boundary of the property in the Pinecrest Lakes

subdivision. This has the effect of maintaining if not

raising groundwater levels.

CONCLUSIONS OF LAW

48. This is a de novo proceeding designed to formulate

final agency action. See Hamilton C ounty Board of County

Commissioners v. State Department of Environmental Regulation ,

587 So. 2d 1378, 1387 - 1388 (Fla. 1st DCA 1991); Florida

Department of Transportation v. J.W.C. Company, In c., 396

So. 2d 778, 786 - 787 (Fla. 1st DCA 1981); § 120.57(1)(k), Fla.

Stat.

D. ERP Criteria

49. Issuance of an ERP must be based solely on

compliance with applicable permit criteria. See Council of

the Lower Keys v. Charley Toppino & Sons, Inc. , 429 So. 2d 67

(Fla. 3d DCA 1983). Reasonable assurance contemplates a

substantial likelihood that the project will be successfully

implemented. See Metropolitan Dade County v. Coscan Florida

Inc ., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees

are not necessary, and a permit applicant is not required to

eliminate all contrary possibilities or address impacts that

are only theoretical and cannot be measured in real life. See

City of Sunrise v. Indian Trace Community Development

District, et al. , DOAH Case No. 91 - 6036, 1991 Fla. ENV LEXIS

6997, 92 ER FALR 21 (DOAH 1 991, SFWMD 1992); Manasota - 88 Inc.

v. Agrico Chemical Co. and Department of Environmental

Regulation , DOAH Case No. 87 - 2433, 1990 Fla. ENV LEXIS 38 (DER

1990). Furthermore, as the instant application is for a

conceptual permit, the applicant does not need to provide

detailed construction plans and may make modifications as such

plans are developed.

50. The applicable criteria for the issuance of a

standard general ERP for the project are set forth in Rules

40E - 4.301 and 40E - 4.302, as well as SFWMD's BO R, which is made

applicable pursuant to Rule 40E - 4.301(3).

51. Notwithstanding Petitioner's contention to the

contrary, it was found and is concluded that the UMAM analysis

done by The Gables and the District was proper under Rule 62 -

345.600(3)(c).

E. Burdens of Proof and Persuasion

52. As applicant, The Gables has the ultimate burden of

proof and burden of persuasion. See Florida Department of

Transportation v. J.W.C. Company, Inc ., supra at 786 - 789.

Upon presentation of a prima facie case of credi ble evidence

of reasonable assurances and entitlement to the permit, the

burden of presenting evidence can be shifted to Petitioner, as

permit challenger, to present evidence of equivalent quality

to refute the applicant’s evidence of reasonable assurances

and entitlement to the permit. Id. ; Ward v. Okaloosa County ,

DOAH Case No. 88 - 5147, 1989 Fla. ENV LEXIS 105, 89 ER FALR 83

(DER 1989).

53. Upon agreement of the parties, SFWMD's file

containing the permit application, all supporting information

and doc uments, and the agency’s analysis and decision

concerning issuance of the permit, was submitted as Joint

Exhibit 1.

54. Joint Exhibit 1 established a prima facie case of

reasonable assurances and entitlement to the permit.

Additionally, the expert opin ions presented by witnesses for

The Gables and for the District supported the application and

the conclusion of the Amended Staff Report that reasonable

assurances were provided that the Rules and BOR criteria were

met, notwithstanding Petitioner's cross - e xamination.

55. Based on that evidence, as permit challenger,

Petitioner had the burden of producing evidence of equivalent

quality to refute the Gables prima facie case. Petitioner’s

burden cannot be met by mere speculation on what might occur.

Citiz ens Against Blasting Inc., v. Department of Environmental

Protection and Angelo’s Aggregate Materials Ltd ., DOAH Case

No. 00 - 4007, 2001 Fla. ENV LEXIS 31, 1 ER FALR 94 (DEP 2001);

Chipola Basin Protective Group Inc., et al. v. Department of

Environmental R egulation , 11 F.A.L.R. 467, 480 - 481, 1988 WL

185574, at *3 - 7 (DER 1988).

56. In this case, Petitioner presented no substantive

evidence, and The Gables proved its entitlement to the permit

by a preponderance of the evidence. See Fireman’s Fund

Indemni ty Co. v. Perry , 5 So. 2d 862 (Fla. 1942).

57. On the other hand, the burden to prove standing is

on Petitioner. Since Petitioner failed to prove his

allegations of flooding or any other adverse impacts to his

environmental interests due to the design of the SWM system,

he failed to prove his standing. See § 120.52(12)(b), Fla.

Stat. (2005)(party standing can be given to a "person . . .

whose substantial interests will be affected by proposed

agency action); § 403.412(5), Fla. Stat. (2005)("substantial

interests . . . will be considered to be determined or

affected if the party demonstrates it may suffer an injury in

fact which is of sufficient immediacy and is of the type and

nature intended to be protected by this chapter"). See also

Agrico Chem. Co. v. Dept. of Environmental Reg. , 406 So. 2d

478 (Fla. 2d DCA 1981), rev. den. , 415 So. 2d 1359 (Fla.

1982).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the South Florida Water Management

Dis trict enter a final order issuing to The Gables ERP number

43 - 01438 - P, to expire in two years, subject to the conditions

set forth in the Amended Staff Report.

DONE AND ENTERED this 16th day of March, 2006, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 16th day of March, 2006.

ENDNOTES

1/ Unless otherwise noted, all statutory citations are to the

2005 codification of the Florida Statutes, and all rule

citations are to the current version of the Florida

Administrative Code.

2/ The Amended Staff Report erroneously mentions offsite

mitigation, which actually is not proposed, and erroneously

states that the ERP will expire in July 2005. Actually, as a

conceptual p ermit, the ERP would expire two years after entry

of the final order in this case. See Fla. Admin. Code R. 40E -

4.321(1)(a).

3/ Although cumulative impacts within the applicable drainage

basin also are required to be considered under Section

373.414(8) , Florida Statutes, the parties stipulated that

cumulative impacts are not an issue in this case.

4/ Since all mitigation is onsite, it also is all within the

same drainage basin where the wetland impacts occur; since

mitigation fully offsets the impac ts under the UMAM analysis,

there can be no cumulative impacts.

COPIES FURNISHED :

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 3007

Donna Holshouser Stinson, Esquire

Br oad and Cassel

Post Office Drawer 11300

Tallahassee, Florida 32302 - 1300

Ashley D. Foster, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406 - 3007

Brian DiVentura

377 Northwest Canna Way

Jensen Be ach, Florida 34957 - 3518

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.