04-002401 Gloria Benoit vs. City Of Deltona And St. Johns River Water Management District
 Status: Closed
Recommended Order on Friday, May 27, 2005.


View Dockets  
Summary: Respondent, applicant for an environmental resource permit (ERP) provided reasonable assurance that the applicable requirements of Florida Administrative Code Rules 40C-4.301 and 302 have been met so as to entitle it to the ERP.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BARBARA ASH, et al. , ) Case Nos. 04-2399

16) 04-2400

18Petitioners, ) 04-2401

21) 04-2403

23vs. ) 04-2404

26) 04-2405

28CITY OF DELTONA AND ST. JOHNS ) 04-2406

36RIVER WATER MANAGEMENT ) 04-2408

41DISTRICT, ) 04-2409

44) 04-2411

46Respondents. ) 04-2412

49) 04-3048

51RECOMMENDED ORDER

53This cause came on for formal hearing before Robert S.

63Cohen, Administrative Law Judge with the Division of

71Administrative Hearings, on March 30 through March 31, 2005, in

81Deltona, Florida.

83APPEARANCES

84For Petitioners Barbara Ash, Francell Frei, Bernard J. and

93Virginia T. Patterson, and Ted and Carol Sullivan:

101Barbara Ash, Qualified Representative

105943 South Dean Circle

109Deltona, Florida 32738

112For Petitioners Howard Ehmer and Nina Ehmer:

119Howard and Nina Ehmer, pro se

1251081 Anza Court

128Deltona, Florida 32738

131For Petitioners Steven L. Spratt, James E. Peake, and

140Alicia M. Peake:

143Steven L. Spratt, Qualified Representative

1482492 Weatherford Drive

151Deltona, Florida 32738

154For Petitioners Steven E. Larimer, Kathleen Larimer, and

162Helen Rose Farrow:

165J. Christy Wilson, Esquire,

169(No Appearance)

171Wilson, Garber & Small, P.A.

176437 North Magnolia Avenue

180Orlando, Florida 32801

183For Petitioner Diana E. Bauer:

188Diana E. Bauer, pro se

1931324 Tartan Avenue

196Deltona, Florida 32738

199For Petitioner Gloria Benoit:

203Gloria Benoit, (Appeared First Day Only)

2091300 Tartan Avenue

212Deltona, Florida 32738

215For Petitioner Gary Jensen:

219Gary Jensen, (No Appearance)

2231298 Tartan Avenue

226Deltona, Florida 32738

229For Petitioner Phillip Lott:

233Phillip Lott, pro se

237948 North Watt Circle

241Deltona, Florida 32738-7919

244For Respondent City of Deltona:

249George Trovato, Esquire

252City of Deltona

2552345 Providence Boulevard

258Deltona, Florida 32725

261For Respondent St. Johns River Water Management District:

269Kealey A. West, Esquire

273St. Johns River Water Management District

2794049 Reid Street

282Palatka, Florida 32177

285STATEMENT OF THE ISSUE

289The issue is whether the applicant for an Environmental

298Resource Permit ("ERP"), the City of Deltona ("City" or

"310Applicant"), has provided reasonable assurance that the system

319proposed complies with the water quantity, environmental, and

327water quality criteria of the St. Johns River Water Management

337District's ("District") ERP regulations set forth in Florida

347Administrative Code Chapter 40C-4, and the Applicant's Handbook:

355Management and Storage of Surface Waters (2005).

362PRELIMINARY STATEMENT

364Petitioners received notice of the District's intent to

372issue the ERP to the City and timely filed Petitions for a

384Formal Administrative Hearing challenging the District's

390intended issuance of the ERP. The matter was referred to the

401Division to conduct a formal administrative hearing pursuant to

410Sections 120.569 and 120.57(1), Florida Statutes. At the

418hearing, the City presented the testimony of William Musser, an

428expert in stormwater management, hydrology, and ecology; and

436Roderick Cashe, an expert in stormwater management. Exhibit

444Nos. 1, 2, 4, 5, 7-9, 13, and 14A-F were offered by the City and

459were admitted into evidence.

463Petitioner Ash testified herself and on behalf of

471Petitioners Francell Frei, Bernard J. and Virginia T. Patterson,

480and Ted and Carol Sullivan. Exhibit Nos. 1-6 and 12-24 were

491offered by Ms. Ash were admitted into evidence. Petitioner

500Diana E. Bauer testified herself, and offered no exhibits into

510evidence. Petitioner Howard Ehmer testified himself, and

517offered no exhibits into evidence. Petitioner Phillip Lott

525testified himself, and had Exhibit Nos. 1-19 admitted into

534evidence. Petitioner Stephen Spratt testified himself and on

542behalf of James E. and Alicia M. Peake, and offered no exhibits

554into evidence.

556The District presented the testimony of Lee Kissick, an

565expert in wetland and wildlife ecology, mitigation planning,

573wetland delineation, and environmental resource planning and

580regulation; and Marjorie Cook, an expert in water resource

589engineering, surface water and stormwater management systems,

596and environmental resource permitting and regulation. Exhibit

603Nos. 5, 17, 24, 32, 33, and 38 were offered by the District and

617were admitted into evidence.

621The Amended Pre-Hearing Stipulation, filed with the

628Division on March 29, 2005, was admitted into evidence as Joint

639Exhibit No. 1.

642A three-volume Transcript was filed on April 19, 2005. The

652parties had been permitted to file their proposed recommended

661orders within 10 days of the date on which the transcript was

673filed. Petitioner Phillip Lott filed his Proposed Recommended

681Order on April 12, 2005, Petitioner Howard Ehmer filed his

691Proposed Recommended Order on April 13, 2005, and Petitioners'

700Barbara Ash, Francell Frie, and Gloria Benoit filed their

709Proposed Recommended Orders on April 15, 2005. Respondent

717St. Johns River Water Management District filed its Proposed

726Recommended Order on April 29, 2005, and Respondent City of

736Deltona filed its approval and adoption of St. Johns River Water

747Management District's Proposed Recommended Order on May 2, 2005.

756References are to Florida Statutes (2004), unless otherwise

764noted.

765FINDINGS OF FACT

7681. The District is a special taxing district created by

778Chapter 373, Florida Statutes, charged with the duty to prevent

788harm to the water resources of the District, and to administer

799and enforce Chapter 373, Florida Statutes, and the rules

808promulgated thereunder.

8102. The City of Deltona is a municipal government

819established under the provisions of Chapter 165, Florida

827Statutes.

8283. The Lake Theresa Basin is comprised primarily of a

838system of interconnected lakes extending from Lake Macy in the

848City of Lake Helen to the Butler Chain of Lakes (Lake Butler and

861Lake Doyle). The Lake Theresa Basin is land-locked and does not

872have a natural outfall to Lake Monroe and the St. Johns River.

8844. In 2003, after an extended period of above-normal

893rainfall in the Deltona area, the lakes within the land-locked

903Lake Theresa Basin staged to extremely high elevations that

912resulted in standing water in residential yards, and rendered

921some septic systems inoperable. Lake levels within the Lake

930Theresa Basin continued to rise and were in danger of rising

941above the finished floor elevations of some residences within

950the basin.

9525. On March 25, 2003, the District issued an Emergency

962Order (F.O.R. No. 2003-38) authorizing the construction and

970short-term operation of the Lake Doyle and Lake Bethel Emergency

980Overflow Interconnection. Since wetland and surface water

987impacts would occur, the Emergency Order required the City of

997Deltona to obtain an ERP for the system.

10056. The project area is 4.1 acres, and the system consists

1016of a variable water structure on the west shore of Lake Doyle

1028connected to a series of pipes, swales, water control

1037structures, and wetland systems which outfall to a finger canal

1047of Lake Bethel, with ultimate discharge to Lake Monroe and the

1058St. Johns River.

10617. The first segment of the system extends downstream from

1071the weir structure on the west shore of Lake Doyle via a pipe

1084entrenched in the upland berm of the Sheryl Drive right-of-way.

1094The pipe passes under Doyle Road and through xeric pine-oak

1104uplands to the northeast shore of a large (approximately 15

1114acres) deepwater marsh. Water flows south through the deepwater

1123marsh where it outfalls through four pipes at Ledford Drive.

11338. Two of the four pipes are overflow structures,

1142controlled by canal gates. The pipes at Ledford Drive discharge

1152into a ditch and into a large (greater than 20 acres) shallow

1164bay swamp.

11669. The south end of the bay swamp is defined (and somewhat

1178impounded) by a 19th Century railroad grade. Water flows

1187through the bay swamp where it outfalls through five pipes at

1198the railroad grade.

120110. Three of the five pipes are overflow structures,

1210controlled by channel boards. The pipes at the railroad grade

1220discharge to a 1500-foot long finger canal that was dug some

1231time during the period 1940-1972 from the north central shore of

1242Lake Bethel.

124411. The overflow interconnection system has three

1251locations whereby the system can be shut down: 1) Lake Doyle--a

1262control weir, controlled by three sluice gates; 2) Ledford

1271Drive--two thirty-inch reinforced concrete pipes, controlled by

1278canal gates; and 3) railroad grade--three thirty-inch reinforced

1286concrete pipes, controlled by channel boards (collectively

1293referred to as "Overflow Structures").

129912. The Overflow Structures are designed to carry the

1308discharge of water from Lake Doyle to Lake Bethel.

131713. With the Overflow Structures closed the system returns

1326to pre-construction characteristics, meaning there will be no

1334increase or decrease in the quantity or quality of water

1344throughout the path of the system as a result of the project.

135614. An unequivocal condition of the permit is that the

1366system would operate with all of the Overflow Structures closed.

137615. As an added assurance, the City proposes to place a

1387brick and mortar plug in the Lake Doyle weir structure outfall

1398pipe to prevent any discharge from the weir.

140616. The City has submitted to the District preliminary

1415plans for a future phase in which the system would be modified

1427for the purpose of alleviating high water levels within the Lake

1438Theresa Basin when the water level in Lake Doyle rises above an

1450elevation of 24.5 feet.

145417. The District shall require a separate permit

1462application to be submitted for such future plans.

147018. Petitioner, Barbara Ash, has lived on Lake Theresa for

148019 years. Ms. Ash lives upstream from the area of the weir that

1493will be plugged in accordance with the ERP. She does not trust

1505either the City of Deltona to comply with or the District to

1517enforce the conditions of the ERP applied for by the City.

152819. Petitioner, Barbara Ash, also served as the qualified

1537representative for Petitioners, Francell Frei, Bernard J. and

1545Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash

1554represented that Ms. Frei has lived on Lake Theresa for 12

1565years, and both the Pattersons and the Sullivans live on Lake

1576Louise, which is within the area of concern in this proceeding.

158720. Petitioner, Diana Bauer, has lived on Lake Theresa

1596since February 2004. She fears that the lake will become too

1607dry if the system is allowed to flow. She also believes the

1619wildlife will be adversely affected if the water levels are too

1630low since many species need a swampy or wet environment to

1641thrive. She fears her property value will decrease as a result

1652of the approval of the ERP. She also does not trust either the

1665City to comply with or the District to enforce the conditions of

1677the ERP.

167921. Petitioner, Howard Ehmer, lives two to three hundred

1688yards down Lake Theresa from Ms. Bauer. He is concerned about

1699the lake bed being too dry and attracting people on all terrain

1711vehicles who enjoy driving around the lake bottom. He is

1721concerned about his property value decreasing if the lake bed is

1732dry. Further, when the lake level is too low, people cannot

1743enjoy water skiing, boating, and fishing on Lake Theresa.

175222. Petitioner, Phillip Lott, a Florida native, has also

1761owned and lived on property abutting Lake Theresa since 1995.

1771Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal

1783zone studies, an M.B.A. in international business, and a B.S. in

1794environmental resource management and planning. Mr. Lott has

1802been well acquainted with the water levels on Lake Theresa for

1813many years. Based upon his personal observations of the lake

1823systems in the Deltona area over the years, Mr. Lott has seen

1835levels fluctuate greatly based upon periods of heavy and light

1845rainfall.

184623. Mr. Lott is concerned that the District will permit

1856the City to open the weir to let water flow through the system

1869and cause flooding in some areas and low water levels in other

1881areas. He fears that the District will allow the water to flow

1893and upset the environmental balance, but he admits that this ERP

1904application is for a closed system that will not allow the water

1916to flow as he fears. Mr. Lott similarly does not trust the City

1929to comply with and the District to enforce the conditions of the

1941ERP.

194224. Petitioners, James E. and Alicia M. Peake, who were

1952represented by Steven L. Spratt at hearing as their qualified

1962representative, live on Lake Louise, which is interconnected

1970with the Lake Theresa basin. The Peakes are concerned that if

1981the level of Lake Louise drops below 21 feet, nine inches, they

1993will not be able to use the boat launch ramps on the lake.

200625. Petitioner, Steven L. Spratt, also lives on Lake

2015Louise, and is concerned about the water levels becoming so low

2026that he cannot use the boat launch on the lake. He has lived on

2040the lake since 2000, and remembers when the water level was

2051extremely low. He fears that approval of the ERP in this case

2063will result in low levels of water once again.

207226. Petitioner, Gloria Benoit, has live on Lake Theresa

2081for two years. She also enjoys watching recreational activities

2090on the lake, and feels that approval of the ERP will devalue her

2103lakefront property. Ms. Benoit appeared at the first day of the

2114hearing, but offered no testimony on her behalf.

212227. J. Christy Wilson, Esquire, appeared prior to the

2131final hearing as counsel of record for Petitioners, Steven E.

2141Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither

2149Ms. Wilson nor any of the three Petitioners she represented

2159appeared at any time during the hearing, filed any pleadings

2169seeking to excuse themselves from appearing at the final

2178hearing, or offered any evidence, testimony, pre- or post-

2187hearing submittals.

218928. Petitioner, Gary Jensen, did not appear at hearing,

2198did not file any pleadings or papers seeking to be excused from

2210appearing at the final hearing, and did not offer any evidence,

2221testimony, pre- or post-hearing submittals.

222629. Both the City and the District recognize that areas

2236downstream from the project site, such as Stone Island and

2246Sanford, have experienced flooding in the past in time of high

2257amounts of rainfall.

226030. The system proposed by the City for this ERP will

2271operate with the overflow structures closed and a brick and

2281mortar plug in the outfall pipe to prevent water flow from Lake

2293Doyle to Lake Bethel. So long as the overflow structures are

2304closed, the system will mimic pre-construction flow patterns,

2312with no increase in volume flowing downstream.

231931. The District has considered the environment in its

2328proposed approval of the ERP. The area abutting the project is

2339little urbanized and provides good aquatic and emergent marsh

2348habitat. With the exception of the western shore area of the

2359deepwater marsh ("west marsh area"), the bay swamp and remaining

2371deepwater marsh area have good ecological value.

237832. In the 1940's, the west marsh area was incorporated

2388into the drainage system of a poultry farm that occupied the

2399site. This area apparently suffered increased nutrient influxes

2407and sedimentation that contributed to a proliferation of

2415floating mats of aquatic plants and organic debris.

242333. These tussocks reduced the deepwater marsh's open

2431water and diminished the historical marsh habitat. Water under

2440the tussocks is typically anoxic owing to total shading by

2450tussocks and reduced water circulation. Thick, soft, anaerobic

2458muck has accumulated under the matted vegetation. Exotic shrubs

2467(primrose willow Ludwigia peruvania ) and other plants (cattails

2476Typha spp .) dominate the tussocks.

248234. The construction of the project, from the 2003

2491Emergency Order, resulted in adverse impacts to 1.3 acres of

2501wetlands having moderately high- to high ecological value and

25100.2 acres of other surface waters.

251635. The 0.2 acre impact to other surface waters was to the

2528lake bottom and the shoreline of Lake Doyle where the weir

2539structure was installed.

254236. The 0.3 acres of wetland impacts occurred at the upper

2553end of the deepwater marsh where the pipe was installed.

256337. The largest wetland impact (1.0 acre) was to the bay

2574swamp. The bay swamp is a shallow body dominated by low

2585hummocks and pools connected inefficiently by shallow braided

2593channels and one acre is filled with a 1-2 foot layer of

2605sediment following swamp channelization. Disturbance plants

2611(e.g., primrose willow, Ludwigia peruvania , and elderberry

2618Sambucus Canadensis ) now colonize the sediment plume.

262638. Pursuant to the District's elimination and reduction

2634criteria, the applicant must implement practicable design

2641modifications, which would reduce or eliminate adverse impacts

2649to wetlands and other surface waters. A proposed modification,

2658which is not technically capable of being done, is not

2668economically viable, or which adversely affects public safety

2676through endangerment of lives or property is not considered

"2685practicable."

268639. The City reduced and/or eliminated the impacts to the

2696lake bottom and shoreline of Lake Doyle and deepwater marsh, to

2707the extent practicable. The impacts were the minimum necessary

2716to install the weir structure and pipe for the system; the weir

2728structure and pipe were carefully installed on the edges of the

2739wetland and surface water systems, resulting in a minimum amount

2749of grading and disturbance.

275340. To compensate for the loss of 1.3 acres of wetlands

2764and 0.2 acres of other surface waters, the City proposes to

2775preserve a total of 27.5 acres of wetlands, bay swamp, marsh,

2786and contiguous uplands. Included in this 27.5 acres are 6.4

2796acres of the west marsh, which are to be restored. The parties

2808stipulated that the mitigation plan would adequately compensate

2816for losses of ecological function (e.g. wildlife habitat and

2825biodiversity, etc.) resulting from the project.

283141. Water quality is a concern for the District. Lake

2841Monroe is included on the Florida Department of Environmental

2850Protection's verified list of impaired water bodies for

2858nitrogen, phosphorous, and dissolved oxygen. Water quality data

2866for Lake Monroe indicate the lake has experienced high levels of

2877nitrogen and phosphorous and low levels of dissolved oxygen.

288642. Prior to construction of the project, there was no

2896natural outfall from the Lake Theresa Basin to Lake Monroe and

2907therefore no contribution from this basin to nitrogen and

2916phosphorous loadings to Lake Monroe.

292143. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and

2931the Savannah are surface waters within the Lake Theresa Basin

2941for which minimum levels have been adopted pursuant to Florida

2951Administrative Code Chapter 40C-8.

295544. The system will operate with the overflow structures

2964closed and a brick and mortar plug in the outfall pipe to

2976prevent water flow from Lake Doyle to Lake Bethel, resulting in

2987no outfall from the Theresa Basin to Lake Monroe.

299645. Minimum flows established for surface waters within

3004the Lake Theresa Basin will not be adversely impacted.

301346. Under the first part of the secondary impact test, the

3024City must provide reasonable assurance that the secondary

3032impacts from construction, alteration, and intended or

3039reasonable expected use of the project will not adversely affect

3049the functions of adjacent wetlands or surface waters.

305747. The system is designed as a low intensity project. As

3068proposed, little activity and maintenance are expected in the

3077project site area. The reasonably expected use of the system

3087will not cause adverse impacts to the functions of the wetlands

3098and other surface waters.

310248. None of the wetland areas adjacent to uplands are used

3113by listed species for nesting or denning.

312049. In its pre-construction state, the project area did

3129not cause or contribute to state water quality violations.

313850. Under the second part of the secondary impact test,

3148the City must provide reasonable assurance that the

3156construction, alteration, and intended or reasonably expected

3163uses of the system will not adversely affect the ecological

3173value of the uplands to aquatic or wetland dependent species for

3184enabling existing nesting or denning by these species.

319251. There are no listed threatened or endangered species

3201within the project site area.

320652. Under the third part of the secondary impact test, and

3217as part of the public interest test, the District must consider

3228any other relevant activities that are closely linked and

3237causally related to any proposed dredging or filling which will

3247cause impacts to significant historical and archaeological

3254resources. When making this determination, the District is

3262required, by rule, to consult with the Division of Historical

3272Resources. The Division of Historical Resources indicated that

3280no historical or archaeological resources are likely present on

3289the site.

329153. No impacts to significant historical and

3298archaeological resources are expected.

330254. Under the fourth part of the secondary impact test,

3312the City must demonstrate that certain additional activities and

3321future phases of a project will not result in adverse impacts to

3333the functions of wetlands or water quality violations.

334155. The City has submitted to the District preliminary

3350plans for a future phase in which the system would be modified

3362for the purpose of alleviating high water levels within the Lake

3373Theresa Basin when the level in Lake Doyle rises above an

3384elevation of 24.5 feet.

338856. Based upon the plans and calculations submitted, the

3397proposed future phase, without additional measures, could result

3405in minor increases in the loadings of nitrogen and phosphorous

3415to Lake Monroe.

341857. Lake Monroe is included on the Florida Department of

3428Environmental Protection's verified list of impaired water

3435bodies due to water quality data indicating the lake has

3445experienced high levels of nitrogen and phosphorous, and low

3454levels of dissolved oxygen.

345858. Under this potential future phase, there would be an

3468outfall from the Lake Theresa Basin to Lake Monroe. To address

3479the impact on water quality of this potential future phase, the

3490City has submitted a loading reduction plan for nitrogen,

3499phosphorous, and dissolved oxygen. The plan includes

3506compensating treatment to fully offset the potential increased

3514nutrient loadings to Lake Monroe. Specifically, the loading

3522reduction plan includes:

3525Construction and operation of compensating

3530treatment systems to fully offset

3535anticipated increased nutrient loadings to

3540Lake Monroe. Weekly water quality

3545monitoring of the discharge from Lake Doyle

3552for total phosphorous and total nitrogen. A

3559requirement that the overflow structure be

3565closed if the total phosphorous level

3571reaches 0.18 mg/l or higher or the total

3579nitrogen level reaches 1.2 mg/l or higher in

3587any given week and will remain closed until

3595levels fall below those limits.

360059. The implementation of these water quality mitigation

3608measures will result in a net improvement of the water quality

3619in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen.

362860. The future phase was conceptually evaluated by the

3637District for impacts to wetland functions. The future phase as

3647proposed could result in adverse impacts to wetland functions.

3656Operation of the system with the overflow structures open could

3666impact the bay swamp and deepwater marsh. The City has

3676demonstrated that any adverse impacts could be offset through

3685mitigation.

368661. Based upon the information provided by the City and

3696general engineering principles, the system is capable of

3704functioning as proposed.

370762. The City of Deltona will be responsible for the

3717operation, maintenance, and repair of the surface waster

3725management system. A local government is an acceptable

3733operation and maintenance entity under District rules.

374063. The public interest test has seven criteria. The

3749public interest test requires the District to evaluate only

3758those parts of the project actually located in, on, or over

3769surface waters or wetlands, to determine whether a factor is

3779positive, neutral, or negative, and then to balance these

3788factors against each other. The seven factors are as follows:

37981) the public health, safety, or welfare of others;

38072) conservation of fish and wildlife and their habitats;

38163) fishing, recreational value, and marine productivity;

38234) temporary or permanent nature; 5) navigation, water flow,

3832erosion, and shoaling; 6) the current condition and relative

3841value of functions; and 7) historical and archaeological

3849resources.

385064. There are no identified environmental hazards or

3858improvements to public health and safety. The District does not

3868consider impacts to property values.

387365. To offset any adverse impacts to fish and wildlife and

3884their habitats, the City has proposed mitigation.

389166. The areas of the project in, on, or over wetlands do

3903not provide recreational opportunities.

390767. Construction and operation of the project located in,

3916on, or over wetlands will be permanent in nature.

392568. Construction and operation of the project located in,

3934on, or over wetlands will not cause shoaling, and does not

3945provide navigational opportunities.

394869. The mitigation will offset the relative value of

3957functions performed by areas affected by the proposed project.

396670. No historical or archaeological resources are likely

3974on the site of the project.

398071. The mitigation of the project is located within the

3990same drainage basin as the project and offsets the adverse

4000impacts. The project is not expected to cause unacceptable

4009cumulative impacts.

4011CONCLUSIONS OF LAW

401472. The Division of Administrative Hearings has

4021jurisdiction over the subject matter of and the parties to this

4032proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

403973. Petitioners, Gary Jensen, Steven E. Larimer,

4046Kathleen Larimer, and Helen Rose Farrow, neither appeared at

4055hearing, personally or through counsel or qualified

4062representative. Moreover, since none of these Petitioners filed

4070any pleadings seeking to excuse themselves from appearing at

4079hearing or offered any pre- or post-hearing submittals, they

4088have apparently abandoned their claims. Accordingly,

4094Petitioners Jensen, the Larimers, and Farrow are dismissed from

4103these proceedings.

410574. The City's application for an environmental resource

4113permit is governed by Florida Administrative Code Chapter 40C-4,

4122Regulation of Surface Water Management Systems, which

4129implements, in part, Part IV of Chapter 373, Florida Statutes.

4139Pursuant to this statute and rules, the District has regulatory

4149jurisdiction over the permit applicant and project in this

4158proceeding.

415975. The applicant must satisfy the conditions for issuance

4168set forth in Florida Administrative Code Rules 40C-4.301 and

417740C-4.302. The applicant must provide reasonable assurances

4184that the conditions for issuance have been satisfied.

419276. An administrative hearing conducted pursuant to

4199Sections 120.569 and 120.57(1), Florida Statutes, is a de novo

4209proceeding designed to formulate final agency action. See

4217County Comm'rs v. State , 587 So. 2d 1378,1387-88 (Fla. 1st DCA

42291991); Fla. Dept. of Transportation v. J.W.C. , 396 So. 2d 778

4240(Fla. 1st DCA 1981).

424477. The initial burden is on the applicant to prove

4254entitlement to the permit by a preponderance of the evidence.

4264J.W.C. , 396 So. 2d at 788. The applicant must provide

4274reasonable assurances through presentation of credible evidence

4281of entitlement to the permit that the proposed project will not

4292violate applicable District rules or Florida Statutes. Id. At

4301789.

430278. The applicant's burden is one of "reasonable

4310assurances, not absolute guarantees." Manasota-88, Inc. v.

4317Agrico Chemical Co. , 12 F.A.L.R. 1319, 1325 (DER 1990); aff'd

4327576 So. 2d 781 (Fla. 1st DCA 1991). The "reasonable assurance"

4338standard has been judicially defined to require an applicant to

4348establish "a substantial; likelihood that the project will be

4357successfully implemented." Metro Dade County v. Coscan Florida,

4365Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable

4376assurances must deal with reasonable foreseeable contingencies.

4383The standard does not require an absolute guarantee that a

4393violation of a rule is a scientific impossibility, only that its

4404non-occurrence is reasonable assured by accounting for

4411reasonably foreseeable contingencies. Ginnie Springs, Inc. v.

4418Watson , 21 F.A.L.R. 4072, 4080 (DEP 1999); Manasota-88 , 12

4427F.A.L.R. at 1325. In assessing the risk to resources or water

4438quality, the District is not required to assume a "worst case

4449scenario" unless such a scenario is "reasonably foreseeable."

4457Florida Audubon Society v. South Florida Water Management

4465District , 14 F.A.L.R. 5518, 5524 (SFWMD 1992); Rudloe v.

4474Dickerson Bayshore, Inc. , 10 F.A.L.R. 3426-2440-41 (DER 1988).

448279. Once an applicant has presented evidence and made a

4492preliminary showing of reasonable assurance, a challenger must

4500present "contrary evidence of equivalent quality" to that

4508presented by the permit applicant. J.W.C. , 396 So. 2d at 789.

"4519If the petitioner fails to present evidence, or fails to carry

4530the burden of proof as to the controverted facts asserted --

4541assuming that the applicant's preliminary showing before the

4549hearing officer warrants a finding of 'reasonable assurances'--

4557then the permit must be approved." Id. Simply raising concerns

4567or even informed speculation about what "might occur" is not

4577enough to meet the Petitioners' burden. See Chipola Basin

4586Protective Group, Inc. v. Florida Dep't of Environmental

4594Regulation , 11 F.A.L.R. 467, 480-81 (DER 1988). Thus, the City

4604is not required to disprove all the "worst case scenarios" or

"4615theoretical impacts" raised by Petitioners in this proceeding.

4623Lake Brooklyn Civic Ass'n v. Florida Rock Industries , 15

4632F.A.L.R. 4051, 4056 (Fla. LWAC 1993); Hoffert v. St. Joe Paper

4643Co. , 12 F.A.L.R. 4972, 4987 (DER 1990).

465080. Furthermore, since the proceeding is de novo , the

4659proper test is not whether the District properly evaluated the

4669original application, but whether the application as presented

4677at hearing provides reasonable assurance of compliance with

4685District permitting standards. See McDonald v. Dept. of Banking

4694& Finance , 346 So. 2d 569,584 (Fla. 1st DCA 1997).

470581. To meet their respective burdens of proof, Petitioners

4714must present a preponderance of competent and substantial

4722evidence. See Section 120.57(1)(j) and (l), Fla. Stat.; Gould

4731v. Division of Land Sales , 477 So. 2d 612 (Fla. 1st DCA 1985).

474482. The ultimate question of whether reasonable assurances

4752have been provided is a conclusion of law rather than a finding

4764of fact. Coscan Florida, Inc. v. Dep't of Environmental

4773Regulation , 12 F.A.L.R. 1359 (DER 1990); see generally , 1800

4782Atlantic Developers v. Fla. Dep't of Environmental Regulation ,

4790552 So. 2d 946 (Fla. 1st DCA 1989), rev. denied , 562 So. 2d 345

4804(Fla. 1990).

480683. In this proceeding, Petitioners failed to produce

4814competent substantial evidence to refute the reasonable

4821assurances proposed by the City.

482684. The City has provided reasonable assurance the project

4835meets the criteria set forth in Florida Administrative Code

4844Rule 40C-4.301(1), since the "construction, alteration,

4850operation, maintenance, removal, or abandonment of" the proposed

4858system:

4859(a) Will not cause adverse water quantity

4866impacts to receiving waters and adjacent

4872lands;

4873(b) Will not cause adverse flooding to on-

4881site or off-site property;

4885(c) Will not cause adverse impacts to

4892existing surface water storage and

4897conveyance capabilities;

4899(d) Will not adversely impact the value of

4907functions provided to fish and wildlife and

4914listed species by wetlands and other surface

4921waters;

4922(e) Will not adversely affect the quality

4929of receiving waters such that the water

4936quality standards set forth in Chapters 62-

49433, 62-4, 62-302, 62-520, 62-522, and 62-550,

4950F.A.C., including any antidegradation

4954provisions of paragraphs 62-4.242(1)(a) and

4959(b), subsections 62-4,242(2) and (3), and

4966Rule 62-302.300, F.A.C., and any special

4972standards for Outstanding Florida Waters and

4978Outstanding National Resource Waters set

4983forth in subsections 62-4.242(2) and (3),

4989F.A.C., will be violated;

4993(f) Will not cause adverse secondary

4999impacts to the water resources;

5004(g) Will not adversely impact the

5010maintenance of surface or groundwater levels

5016or surface water flows established in

5022Chapter 40C-8, F.A.C.;

5025(h) Will not cause adverse impacts to a

5033work of the District established pursuant to

5040Section 373.086, F.S.;

5043(i) Will be capable, based on generally

5050accepted engineering and scientific

5054principles, of being performed and of

5060functioning as proposed;

5063(j) Will be conducted by an entity with the

5072financial, legal and administrative

5076capability of ensuring that the activity

5082will be undertaken in accordance with the

5089terms and conditions of the permit, if

5096issued;

5097(k) Will comply with any applicable special

5104basin or geographic area criteria

5109established in Chapter 40C-41, F.A.C.

511485. The City demonstrated through competent substantial

5121evidence that the proposed system will meet each of the

5131conditions contained in Florida Administrative Code

5137Rule 40C-4.301(1), and is therefore entitled to the issuance of

5147the ERP by the District, with the exception of

5156Subsection 40C-4.4.301(1)(k), which the parties stipulated does

5163not apply to this project.

516886. Moreover, the City demonstrated through competent

5175substantial evidence that the proposed project meets each of the

5185applicable criteria contained in Florida Administrative Code

5192Rule 40C-4.302(1)(a), which requires an applicant to provide

5200reasonable assurance that the construction, alteration,

5206operation, maintenance, removal, or abandonment of a surface

5214water management system located in, on, or over wetlands or

5224other surface waters will not be contrary to the public

5234interest, or if such an activity significantly degrades or is

5244within an Outstanding Florida Water, that the activity will be

5254clearly in the public interest.

525987. Since no part of the proposed system will

5268significantly degrade or be located within an Outstanding

5276Florida Water, the City was not required to provide reasonable

5286assurances on this point.

529088. Since the evidence clearly demonstrated that the

5298mitigation for the project will offset the project's adverse

5307impacts to wetlands, no adverse effects to the conservation of

5317fish and wildlife or due to the project's permanent nature will

5328occur. The evidence further showed that the project will

5337produce no harmful erosion. Additionally, the project will not

5346adversely affect the flow of water, navigation, significant

5354historical or archaeological resources, recreational or fishing

5361values, marine productivity, or the public health, safety, or

5370welfare or property of others. The evidence showed that this

5380project is permanent in nature and the project's design,

5389including mitigation, is such that the current condition and

5398relative value of functions performed by wetlands will be

5407maintained. Therefore, the City has provided reasonable

5414assurance that the project is not contrary to the public

5424interest since the evidence established that, on balance, the

5433public interest factors were neutral.

543889. Florida Administrative Code Rule 40C-4.302(1)(b),

5444requires an applicant to provide reasonable assurance that the

5453construction, alteration, operation, maintenance, removal, or

5459abandonment of a surface water management system will not cause

5469unacceptable cumulative impacts upon wetlands and other surface

5477waters as set forth in Sections 12.2.8 through 12.2.8.2 of the

5488Applicant's Handbook. When an applicant proposes to mitigate

5496adverse impacts within the same drainage basin as the impacts,

5506and the mitigation fully offsets the impacts, the District will

5516consider the regulated activity to have no unacceptable

5524cumulative impacts upon wetlands and other surface waters. See

553312.2.8, Applicant's Handbook. The evidence showed that the

5541mitigation for the project is located within the same drainage

5551basin as the project and offsets the adverse impacts.

5560Therefore, the project meets the requirements of Florida

5568Administrative Code Rule 40C-4.302(1)(b).

557290. Florida Administrative Code Rule 40C-4.302(1)(c),

5578requires an applicant to provide reasonable assurance that the

5587construction, alteration, operation, maintenance, removal, or

5593abandonment of a surface water management system "[l]ocated in,

5602adjacent to or in close proximity to Class II waters or located

5614in Class II waters or Class III waters classified by the

5625Department as approved, restricted or conditionally restricted

5632for shellfish harvesting as set forth or incorporated by

5641reference in Chapter 62R-7, F.A.C., will comply with the

5650additional criteria in subsection 12.2.5 of the Applicant's

5658Handbook . . . ." Since the parties stipulated that the project

5670is not located in or adjacent to Class II or III waters

5682classified by the Department for shellfish harvesting, this

5690criterion is not applicable.

569491. Florida Administrative Code Rule 40C-4.302(1)(d),

5700requires an applicant to provide reasonable assurance that the

5709construction, alteration, operation, maintenance, removal, or

5715abandonment of a surface water management system which

5723constitute vertical seawalls in estuaries or lagoons, will

5731comply with the additional requirements found in subsection

573912.2.6 of the Applicant's Handbook. Since the parties

5747stipulated that this project does not contain any vertical

5756seawalls in estuaries or lagoons, this criterion is not

5765applicable.

576692. The belief by many of the Petitioners that the City

5777will not construct the proposed system as set forth in the

5788permit application, was not supported by competent substantial

5796evidence. The evidence was unequivocal, from both the City and

5806the District, that the system would be plugged so that no water

5818would flow through the weir at Lake Doyle. In the event the

5830City desires to seek a modification of the permit issued by the

5842District for this system, it will be required, in accordance

5852with Florida Administrative Code Rule 40C-4.331, to apply for

5861such modification and demonstrate that the application for

5869modification meets the requirements set forth in Florida

5877Administrative Code Rules 40C-4.301 and 40C-4.302, just as it

5886was required to do in the case at issue. If the City were to

5900open the plug in the system without first seeking a permit, it

5912would be required to return the system to the condition that

5923existed before the illegal construction pursuant to Florida

5931Administrative Code Rule 40C-4.751. Both the City and the

5940District testified at hearing that they are aware they must

5950comply with the statutes and rules governing the issuance of

5960permits. No competent substantial evidence was produced to

5968prove that either the City or the District would act outside the

5980law concerning the issuance of environmental resource permits.

5988Based upon the evidence and testimony at hearing, Petitioners'

5997fears are unfounded and, should their concerns come to fruition

6007in the future, they will have adequate remedies at law to

6018address them.

602093. The evidence produced at the final hearing

6028demonstrates that the City has provided reasonable assurance

6036that the applicable requirements of the District's rules have

6045been met and the environmental resource permit should be granted

6055with the conditions proposed by the District in its Technical

6065Staff Report.

6067RECOMMENDATION

6068Based upon the Findings of Fact and Conclusions of Law, it

6079is

6080RECOMMENDED that a Final Order be entered granting the City

6090of Deltona's application for an environmental resource permit

6098with the conditions set forth in the Technical Staff Report, and

6109dismissing the Petitions for Formal Administrative Hearing filed

6117by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer,

6129Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048.

6139DONE AND ENTERED this 27th day of May, 2005, in

6149Tallahassee, Leon County, Florida.

6153S

6154ROBERT S. COHEN

6157Administrative Law Judge

6160Division of Administrative Hearings

6164The DeSoto Building

61671230 Apalachee Parkway

6170Tallahassee, Florida 32399-3060

6173(850) 488-9675 SUNCOM 278-9675

6177Fax Filing (850) 921-6847

6181www.doah.state.fl.us

6182Filed with the Clerk of the

6188Division of Administrative Hearings

6192this 27th day of May, 2005.

6198COPIES FURNISHED :

6201George Trovato, Esquire

6204City of Deltona

62072345 Providence Boulevard

6210Deltona, Florida 32725

6213Diana E. Bauer

62161324 Tartan Avenue

6219Deltona, Florida 32738

6222Barbara Ash, Qualified Representative

6226943 South Dean Circle

6230Deltona, Florida 32738-6801

6233Phillip Lott

6235948 North Watt Circle

6239Deltona, Florida 32738-7919

6242Howard Ehmer

6244Nina Ehmer

62461081 Anza Court

6249Deltona, Florida 32738

6252Francell Frei

62541080 Peak Circle

6257Deltona, Florida 32738

6260Bernard T. Patterson

6263Virginia T. Patterson

62662518 Sheffield Drive

6269Deltona, Florida 32738

6272Kealey A. West, Esquire

6276St. Johns River Water Management District

62824049 Reid Street

6285Palatka, Florida 32177

6288J. Christy Wilson, Esquire

6292Wilson, Garber & Small, P.A.

6297437 North Magnolia Avenue

6301Orlando, Florida 32801

6304Gloria Benoit

63061300 Tartan Avenue

6309Deltona, Florida 32738

6312Gary Jensen

63141298 Tartan Avenue

6317Deltona, Florida 32738

6320James E. Peake

6323Alicia M. Peake

63262442 Weatherford Drive

6329Deltona, Florida 32738

6332Steven L. Spratt

63352492 Weatherford Drive

6338Deltona, Florida 32738

6341Ted Sullivan

63431489 Timbercrest Drive

6346Deltona, Florida 32738

6349Kirby Green, Executive Director

6353St. Johns River Water Management District

63594049 Reid Street

6362Palatka, Florida 32177

6365NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6371All parties have the right to submit written exceptions within

638115 days from the date of this Recommended Order. Any exceptions

6392to this Recommended Order should be filed with the agency that

6403will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/25/2005
Proceedings: Letter to Judge Cohen from P. Lott regarding the granted permit to City of Deltona filed.
PDF:
Date: 07/20/2005
Proceedings: Letter to Judge Cohen from B. Ash responding to the Recommended Order filed.
PDF:
Date: 07/18/2005
Proceedings: (Agency) Final Order filed.
PDF:
Date: 07/13/2005
Proceedings: Agency Final Order
PDF:
Date: 06/10/2005
Proceedings: Notice of Dismissal with Prejudice; and Withdrawal of Request for Administrative Hearing filed.
PDF:
Date: 05/27/2005
Proceedings: Recommended Order
PDF:
Date: 05/27/2005
Proceedings: Recommended Order (hearing held March 30 through March 31, 2005). CASE CLOSED.
PDF:
Date: 05/27/2005
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/02/2005
Proceedings: Approval and Adoption by the City of Deltona of the Proposed Recommended Order submitted by Respondent, St. Johns River Water Management District filed.
PDF:
Date: 04/29/2005
Proceedings: Certificate of Service filed.
PDF:
Date: 04/29/2005
Proceedings: Proposed Recommended Order filed.
Date: 04/19/2005
Proceedings: Transcript of Hearing (Volumes I-III) filed.
PDF:
Date: 04/15/2005
Proceedings: Post Hearing Submittals from Petitioner Gloria Benoit filed.
PDF:
Date: 04/15/2005
Proceedings: Proposed Recommended Order from Petitioner Francell Frei filed.
PDF:
Date: 04/15/2005
Proceedings: Petitioner Barbara Ash`s Proposed Recommended Order filed.
PDF:
Date: 04/15/2005
Proceedings: Post Hearing Submittals from Petitioner Gloria Benoit filed.
PDF:
Date: 04/13/2005
Proceedings: Petitioner Howard Ehmer`s Proposed Final Order filed.
PDF:
Date: 04/12/2005
Proceedings: Petitioner Phillip Lott`s Proposed Final Order filed.
PDF:
Date: 04/04/2005
Proceedings: Letter to Judge Cohen from G. Trovato enclosing hearing exhibit 1 filed.
Date: 03/30/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/29/2005
Proceedings: Amended Pre-hearing Stipulation filed.
PDF:
Date: 03/28/2005
Proceedings: Joint Motion to Introduce Florida Statutes filed.
PDF:
Date: 03/28/2005
Proceedings: St. Johns River Water Management District`s Response to Petitioners Lott and Ash`s Joint Motion to Introduce Florida Statutes filed.
PDF:
Date: 03/28/2005
Proceedings: Pre-hearing Stipulation (filed by K. West).
PDF:
Date: 03/15/2005
Proceedings: Order Denying Respondent`s Joint Motion for Continuance.
PDF:
Date: 03/14/2005
Proceedings: Objection to Joint Motion for Continuance Respondent, City of Deltona and St. Johns River Water Management District from Petitioner Barbara Ash filed.
PDF:
Date: 03/11/2005
Proceedings: Respondents` Joint Motion for Continuance of Final Hearing and Extension of Deadlines in Orders filed.
PDF:
Date: 03/11/2005
Proceedings: Petitioner Phillip Lott`s Objection to Respondent`s Joint Motion for Continuance filed.
PDF:
Date: 03/10/2005
Proceedings: Objection to Joint Motion for Continuance Respondent, City of Deltona and St. Johns River Water Management District from Petitioner Barbara Ash filed.
PDF:
Date: 03/10/2005
Proceedings: Notice of Unavailability (filed by P. Lott).
PDF:
Date: 03/08/2005
Proceedings: Order Granting Motion to Suppress.
PDF:
Date: 03/02/2005
Proceedings: Motion for Order of the Court and in Objection to Respondent, St. Johns River Water Managment District`s Motion to Supress and Amended Motion to Supress (filed by Petitioner, P. Lott).
PDF:
Date: 03/01/2005
Proceedings: Amended Motion to Supress (filed by Respondent).
PDF:
Date: 02/25/2005
Proceedings: Motion to Supress (filed by Respondent).
PDF:
Date: 02/25/2005
Proceedings: Notice of Service of District`s Response to Petitioners` Joint First Set of Interrogatories filed.
PDF:
Date: 02/10/2005
Proceedings: Letter to Judge Cohen from Petitioner withdrawing petition for administrative hearing filed.
PDF:
Date: 02/08/2005
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 02/07/2005
Proceedings: Letter to Judge Cohen from B. Ash advising of issues that needs to be addressed immediately filed.
PDF:
Date: 01/25/2005
Proceedings: Order (Order granting the City`s motion for continuance and extending the deadlines set forth in the Order of Pre-hearing Instructions is re-affirmed based on good cause shown).
PDF:
Date: 01/21/2005
Proceedings: Second Objection to Motion for Continuance Respondent, City of Deltona from Petitioner Barbara Ash filed.
PDF:
Date: 01/13/2005
Proceedings: Objection to Motion for Continuance Respondent, City of Deltona from Petitioner Barbara Ash filed.
PDF:
Date: 01/12/2005
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for March 30-31 and April 1, 2005; 9:00 a.m.; Deltona).
PDF:
Date: 01/11/2005
Proceedings: Petitioner Phillip Lott`s Objection to Respondent, City of Deltona`s, Motion for Continuance filed.
PDF:
Date: 01/11/2005
Proceedings: City of Deltona`s Motion for Continuance and Extension of Deadlines filed.
PDF:
Date: 12/23/2004
Proceedings: Order (Motion to Recuse City of Deltona`s attorney denied).
PDF:
Date: 12/14/2004
Proceedings: Order (a ruling on Lott`s motion to rescue the City`s attorney, L. Roland Blossom, Esquire, is deferred pending the filing of a response to the motion).
PDF:
Date: 11/22/2004
Proceedings: City of Deltona`s Cross-Notice of Taking Deposition filed.
PDF:
Date: 11/18/2004
Proceedings: Notice of Taking Deposition Duces Tecum (2 filed) filed.
PDF:
Date: 11/18/2004
Proceedings: Petitioner Phillip Lott`s First Request for Produce to Respondent, City of Deltona filed.
PDF:
Date: 11/18/2004
Proceedings: Joint First Set of Interrogatories to Respondent, City of Deltona from Petitioners Barbara Ash and Phillip Lott filed.
PDF:
Date: 11/18/2004
Proceedings: Joint First Set of Interrogatories to Cynthia A. Coto, Volusia County Manager from Petitioners Barbara Ash and Phillip Lott filed.
PDF:
Date: 11/18/2004
Proceedings: Joint First Set of Interrogatories to St. Johns River Water Management District, Respondent, from Petitioners Barbara Ash and Phillip Lott filed.
PDF:
Date: 11/15/2004
Proceedings: City`s Request for Copies from District filed.
PDF:
Date: 11/15/2004
Proceedings: St. Johns River Water Managment District`s Second Request for Admissions to Petitioner, Phillip Lot filed.
PDF:
Date: 11/15/2004
Proceedings: St. Johns River Water Managment District`s Second Request for Admissions to Barbara Ash and All Petitioners Represented by Her filed.
PDF:
Date: 11/12/2004
Proceedings: Joint Request for Admissions from Barbara Ash and Phillip Lott, Petitioners, to City of Deltona, Respondent filed.
PDF:
Date: 11/09/2004
Proceedings: Request for Admissions to St. Johns River Water Managment District (filed by Petitioners).
PDF:
Date: 11/09/2004
Proceedings: Barbara Ash`s Response to First Request for Produce of Documents to St. Johns River Water Managment District filed.
PDF:
Date: 11/09/2004
Proceedings: Petitioner Barbara Ash`s Response to First Set of Interrogatories from St. John`s River Water Management District filed.
PDF:
Date: 11/08/2004
Proceedings: Notice of Service of Answers to First Interrogatories to Steven E. Larimer, Kathleen Larimer and Helen Rose Farrow (filed by Respondents).
PDF:
Date: 11/08/2004
Proceedings: Response to Petitioner`s First Request for Production (filed by Respondents via facsimile).
PDF:
Date: 10/28/2004
Proceedings: District`s Response to Request for Admissions filed.
PDF:
Date: 10/11/2004
Proceedings: Order (District`s unopposed Motion for Official Recognition is granted)
PDF:
Date: 10/11/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/11/2004
Proceedings: Amended Notice of Hearing (hearing set for January 18 through 20, 2005; 1:00 p.m.; Deltona, FL; amended as to date of the hearing).
Date: 10/08/2004
Proceedings: Agreen Motion to Abate (filed by C. Finkle via facsimile).
PDF:
Date: 10/06/2004
Proceedings: Unopposed Motion for Continuance and Extension of Deadlines (filed by K. West via facsimile).
PDF:
Date: 10/06/2004
Proceedings: Motion for Official Recognition filed by T. Mayton, Jr.
PDF:
Date: 10/05/2004
Proceedings: Order (Ash`s request is granted and Ash may appear as a qualified representative to represent the Pattersons in this proceeding)
PDF:
Date: 10/04/2004
Proceedings: District`s Response to Barabara Ash`s Objection to Interrogatories filed.
PDF:
Date: 10/04/2004
Proceedings: District`s Response to Larimers` and Farrow`s Objection to Interrogatories filed.
PDF:
Date: 10/04/2004
Proceedings: District`s Response to Phillip Lott`s Objection to Interrogatories filed.
PDF:
Date: 10/01/2004
Proceedings: Affidavit for Representation filed by B. Ash.
PDF:
Date: 10/01/2004
Proceedings: Petitioner Phillip Lott`s Response to First Request for Admissions from Respondent, St. Johns River Water Management District filed.
PDF:
Date: 09/30/2004
Proceedings: Order (Motion to Strike granted).
PDF:
Date: 09/28/2004
Proceedings: Objection to Interrogatories filed by Petitioner.
PDF:
Date: 09/28/2004
Proceedings: Petitioner, Barbara Ash`s Objection to First Request for Admissions from St. Johns River Water Management District`s filed.
PDF:
Date: 09/27/2004
Proceedings: District`s Response to Petitioner`s Joint Request to Produce to St. Johns River Water Management District filed.
PDF:
Date: 09/23/2004
Proceedings: Objection to Interrogatories filed by Petitioner.
PDF:
Date: 09/20/2004
Proceedings: Motion to Strike filed by T. Mayton.
PDF:
Date: 09/20/2004
Proceedings: Objection to Interrogatories filed by J. Wilson.
PDF:
Date: 09/20/2004
Proceedings: Request for Admissions to St. Johns River Water Management District filed by J. Wilson.
PDF:
Date: 09/20/2004
Proceedings: Response to Request for Admissions filed by J. Wilson.
PDF:
Date: 09/02/2004
Proceedings: St. Johns River Water Management District`s First Request for Admissions to Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow filed.
PDF:
Date: 09/02/2004
Proceedings: St. Johns River Water Management District`s First Request for Production of Documents from Petitioners Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow filed.
PDF:
Date: 09/02/2004
Proceedings: Notice of Service of St. Johns River Water Management District`s First Set of Interrogatories to Petitioners, Steven E. Larimer, Kathleen Larimer and Helen Rose Farrow filed.
PDF:
Date: 09/01/2004
Proceedings: Notice of Service of St. Johns River Water Management District`s First Set of Interrogatories to Petitioner, Phillip Lott filed.
PDF:
Date: 09/01/2004
Proceedings: St. Johns River Water Management District`s First Request for Production of Documents from Phillip Lott filed.
PDF:
Date: 09/01/2004
Proceedings: St. Johns River Water Management District`s First Request for Admissions to Petitioner, Phillip Lott filed.
PDF:
Date: 08/31/2004
Proceedings: Case No. 04-3048 was added to the consolidated batch.
PDF:
Date: 08/30/2004
Proceedings: Notice of Related Cases (filed in DOAH Case No. 04-3048).
PDF:
Date: 08/30/2004
Proceedings: St. Johns River Water Management District`s First Request for Production of Documents from Barbara Ash filed.
PDF:
Date: 08/30/2004
Proceedings: St. Johns River Water Management District`s First Request for Admissions to Petitioner, Barbara Ash filed.
PDF:
Date: 08/30/2004
Proceedings: Notice of Service of St. Johns River Water Management District`s First Set of Interrogatories to Petitioner, Barbara Ash filed.
PDF:
Date: 08/18/2004
Proceedings: Amended Notice of Hearing (hearing set for October 27 and 28, 2004; 9:00 a.m.; Deltona, FL; amended as to location of hearing).
PDF:
Date: 08/16/2004
Proceedings: Order Closing File (DOAH Case No. 04-2402 only).
PDF:
Date: 08/16/2004
Proceedings: Order (Respondent`s Motion to Continue granted; final hearing re-scheduled for October 27 and 28, 2004; City and District shall issue response by September 7, 2004, to the two joint requests to produce; B. Ash accepted as qualified representative; further requests to appear as a qualified representative due September 10, 2004; and Ash`s objection to the July 26, 2004, Order Granting the District`s Motions to Strike denied).
PDF:
Date: 08/16/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/16/2004
Proceedings: Amended Notice of Hearing (hearing set for October 27 and 28, 2004; 9:00 a.m.; Deltona, FL; amended as to dates and location of hearing).
PDF:
Date: 08/11/2004
Proceedings: Notice of Petitioner to Withdraw filed.
PDF:
Date: 08/11/2004
Proceedings: Notice Regarding District`s Motion for Continuance and Extension of Deadlines in Orders (filed by Respondent via facsimile).
PDF:
Date: 08/10/2004
Proceedings: Motion for Continuance of Final Hearing and Extension of Deadlines in Orders (filed by Respondent via facsimile).
PDF:
Date: 08/09/2004
Proceedings: Affidavit for Representation filed by B. Ash.
PDF:
Date: 08/09/2004
Proceedings: Letter to Judge Stampelos from F. Frei requesting the B. Ash represent on her behalf filed.
PDF:
Date: 08/09/2004
Proceedings: Objection to Order filed by B. Ash.
PDF:
Date: 08/05/2004
Proceedings: Order (Respondents shall respond to Petitioners` Joint Request by August 20, 2004).
PDF:
Date: 08/04/2004
Proceedings: Francell Frei`s Notice of Unavailability filed.
PDF:
Date: 08/04/2004
Proceedings: Joint Request to Produce to City of Deltona and St. Johns River Water Management District filed.
PDF:
Date: 08/03/2004
Proceedings: Order (directing Petitioners as to qualifying representation by August 13, 2004, filing further documents with DOAH, and Respondents to respond to a discovery request by August 20, 2004).
PDF:
Date: 08/02/2004
Proceedings: Letter to A. Cole from T. and C. Sullivan advising that B. Ash will be our official spokesperson for the case filed.
PDF:
Date: 08/02/2004
Proceedings: Joint Request to Produce to City of Deltona and St. Johns River Water Management District filed.
PDF:
Date: 07/30/2004
Proceedings: Letter to DOAH from S. Worrell requesting withdrawal for an administrative hearing filed.
PDF:
Date: 07/30/2004
Proceedings: Letter to A. Cole from B. Ash (correction to response to Initial Order) filed.
PDF:
Date: 07/29/2004
Proceedings: Notice of Unavailability (filed by Petitioner via facsimile).
PDF:
Date: 07/29/2004
Proceedings: Notice of Appearance (filed by K. West, Esquire).
PDF:
Date: 07/29/2004
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 07/27/2004
Proceedings: Order (Mr. Trovato may appear as the City`s qualified representative).
PDF:
Date: 07/26/2004
Proceedings: Order (District moves to strike several Florida statutory provisions cited by Petitioners).
PDF:
Date: 07/26/2004
Proceedings: Letter to L. Blossom from S. Bradow requesting to set up a meeting filed.
PDF:
Date: 07/26/2004
Proceedings: Affidavit for Representative filed.
PDF:
Date: 07/26/2004
Proceedings: Authorization for Representation filed by Respondent.
PDF:
Date: 07/23/2004
Proceedings: Order (Ash`s request is denied without prejudice because it does not comply with the Uniform Rules of Procedure).
PDF:
Date: 07/23/2004
Proceedings: Bernard J. Patterson and Virginia T. Patterson`s Objection to Motion to Strike filed.
PDF:
Date: 07/23/2004
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 07/22/2004
Proceedings: Letter to A. Cole from B. Ash (response to Initial Order) filed.
PDF:
Date: 07/22/2004
Proceedings: Francell Frei`s Objection to Motion to Strike filed.
PDF:
Date: 07/22/2004
Proceedings: Howard and Nina Ehmer`s Objection to Motion to Strike filed.
PDF:
Date: 07/21/2004
Proceedings: Barbara Ash`s Objection to Motion to Strike filed.
Date: 07/15/2004
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 07/15/2004
Proceedings: Order (enclosing rules regarding qualified representatives).
PDF:
Date: 07/15/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/15/2004
Proceedings: Amended Notice of Hearing (hearing set for September 1 and 2, 2004; 9:00 a.m.; Deltona, FL; amended as to additional parties).
PDF:
Date: 07/15/2004
Proceedings: Order (consolidated cases are: 04-2167, 04-2399, 04-2400, 04-2401, 04-2402, 04-2403, 04-2404, 04-2405, 04-2406, 04-2408, 04-2409, 04-2411, 04-2412, 04-2413).
PDF:
Date: 07/14/2004
Proceedings: Initial Order.
PDF:
Date: 07/12/2004
Proceedings: Notice of Transcription filed.
PDF:
Date: 07/12/2004
Proceedings: Motion to Strike filed.
PDF:
Date: 07/12/2004
Proceedings: Further Amended Petition filed.
PDF:
Date: 07/12/2004
Proceedings: Amended Petition filed.
PDF:
Date: 07/12/2004
Proceedings: Individual Environmental Resource Permit Technical Staff Report filed.
PDF:
Date: 07/12/2004
Proceedings: Notice of Referral filed.

Case Information

Judge:
ROBERT S. COHEN
Date Filed:
07/12/2004
Date Assignment:
01/25/2005
Last Docket Entry:
07/25/2005
Location:
Deltona, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (3):

Related Florida Rule(s) (6):