05-003662 Phillip Lott vs. City Of Deltona And St. Johns Water Management District Status: Closed Recommended Order on Friday, March 17, 2006.

Summary: Respondent, City of Deltona, provided reasonable assurance that its flood control retrofit project met all permitting criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP LOTT and STEVEN L. )

SPRATT, )

)

Petitioners, )

) Case Nos. 05 - 3662

vs. ) 05 - 3664

)

CITY OF DELTONA and ST. JOHNS )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

A final administrative hearing was held in this case on

January 24, 2006, in Deltona, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

F or Petitioner : Phillip Lott , pro se

948 N. Watt Circle

Deltona, Florida 32738

For Respondent S t . J ohns R iver W ater M anagement District:

Kealey A. West, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Fl orida 32177

For Respondent C ity of D eltona:

George Trovato, Esquire

City of Deltona

2345 Providence Boulevard

Deltona, Florida 32725

STATEMENT OF THE ISSUE

This case involves a challenge to St. Johns Rive r Water

Management District’s (Di strict or SJRWMD) intended issuance of

an Environmental Resource Permit (ERP) granting the City's

Application No. 4 - 127 - 97380 - 1, for the construction and

operation of a surface water management system for a retrofit

flood - relief project known as Drysdale D rive/Chapel Drive

Drainage Improvements consisting of: excavation of the Drysdale

Drive pond (Pond 1); improvement to the ou tfall at Sterling

Lake; and the interconnection of Pond 1 and four existing

drainage retention areas through a combination of pump stations

and gravity outfalls (project or system ). The issue is whether

the applicant, the City of Deltona (City or Deltona), has

provided reasonable assurance the system complies with the water

quantity, environmental, and water quality criteria of the

D istrict’s ERP regulations set forth in Chapter 40C - 4, Florida

Administrative Code , 1 and the Applicant’s Handbook: Management

and Storage of Surface Waters (2005) (A.H.). 2

PRELIMINARY STATEMENT

The Petitioners received notice of , a nd timely filed

petit ions for an administrative hearing challenging , the

District’s proposed issuance of the ERP. The matters were

referred to the Division of Administrati ve Hearings (DOAH) to

conduct an administrative hearing pursuant to Sect ion 120.57(1),

Florida Statutes . 3 The cases were consolidated and scheduled for

final hearing on January 24 - 25, 2006, in Deltona, Florida .

On January 19, 2006, the District's Motion for Official

Recognition of the pertinent statutes and rules was filed and

granted without objection.

Th e Petitioner in Case No. 05 - 3664 , Steve n L. Spratt, did

not participate in any of the required prehearing procedures and

did not appear at the final hearing. His petition is subject to

dismiss al for failure to participate.

At the outset of the hearin g, the Petitioner in DOAH Case

No. 05 - 3662, Phillip Lott, raised a new issue -- namely, whether

the City was the proper entity to apply for the permit at issue

and to pay the cost of constructing, maintaining, and operating

the proposed project. He alleged that Sterling Lake, the source

of the water being managed by the proposed project, is

privately - owned and that the owners of the lake, who are

developers, should apply and pay for the project. Mr. Lott's

request s to address only those issues in the final hearing and

then for a summary recommended order were denied. Then, the

parties agreed that this issue would be addressed in the final

hearing.

At the hearing, the City presented the testimony of:

Michael Galura, engineer of record for the system; Don ald J.

Silverberg, an expert in wetlands; and Gle nn Kerns, Director of

Public Works for the City of Deltona . City Exhibits 1 - 6 were

admitted in evidence. The District presented testimony from:

Lee Kissick, an expert in wetland and wildlife ecology,

miti gation planning, wetland delineation and environmental

resource permitting and regulations; and Marjorie Cook, an

expert in water resource engineering, surface water and

stormwater management systems, and environmental resource

permitting and regulation. SJRWMD Exhibits 1, 2, and 3 were

admitted in evidence. The Petitioner in Case No. 05 - 3662,

Phillip Lott , testified in his own behalf but called no other

witnesses and offered no exhibits in evidence.

After presentations of evidence, the District ordere d a

transcript of the hearing, and the parties were given ten days

from the filing of the Transcript to file proposed recommended

orders (PROs). The District, the City, and Mr. Lott timely

filed PROs.

FINDING OF FACTS

A. Site Description

1. The City o f Deltona is located in Southwes t Volusia

County . The City was built on a broad sand ridge that was

historically dominated by sand - pine forest interspersed with

sinks, shallow lakes a nd isolated, seasonal marshes . The City's

infrastructure was largely de signed and constructed in the

1960s - 1970s; the City was incorporated in 1995.

2. As a result of rainfall in 2002, residents located

around the Beechdale Court and Drysdale Drive area s experienced

major flooding. To provide flood relief to this area, t he City

of Deltona has proposed a project to retrofit and expand some of

its existing drainage system to improve efficiency and optimize

storage capacity for the 840 - acre landlocked basin. 4

B. The Project

3. The project consists of three elements: (1) ex cavation

of the Drysdale Drive retention pond (Pond 1) ; (2) improvement

to the o utfall at Sterling Lake; and (3) the interconnection of

Beechdale Court pond and four existing drainage retention areas

through a combination of pump stations and gravity outfa lls.

4. Pond 1 has chronically flooded the rear of adjacent

homes along Drysdale Drive ; the excavation will provide a larger

permanent water body to better manage surface water runof f .

5. The improvement to the Sterling Lake outfall is to

reduce chronic flooding to homes along Beechdale Court.

Currently, when Sterling Lake exceeds its bank, water sheetflows

to the northeast , directly into the rear of the homes along

Beechdale Court. With the proposed improvement, water will be

captured at a poin t to the north of Sterling Lake and redirected

t hrough a piped, gravity outfall system through a dedicated

easement into th e Beechdale Court pond. From there, water flows

through an existing, maintained culvert under Fort Smith Drive

into Pond 1.

6. M r. Lott contends that this aspect of the proposed

system benefits the owner (s) of Sterling Lake. He contends that

Sterling Lake is the cause of the flooding problems and that its

owners should be made responsible and should be required to

apply for the pe rmit and pay for the project instead of the

City. However, there was no evidence to suggest that the owners

of Sterling Lake are responsible for flooding.

7. Mr. Lott also suggests that , through this permit, the

City will be paying to redirect water a way from where it

sheetflows out of Sterling Lake when it exceeds its banks during

heavy rains in order to make that property suitable for

residential development for the benefit of the owners of

Sterling Lake, who are developers . He also seemed to conten d

that the project would lower the water level of Sterling Lake to

enlarge their developable land. H e believes that the private

owner s receiving these benefit s are required to apply for the

ERP and pay for the costs involved . H e contends in his PRO that

the City is instead spreading the cost to taxpayers to redirect

flood waters " from one neighborhood of upper middle class homes

to another, of lower socio - economic status, in order to allow

more development in the richer area, all at taxpayer expense."

No ne of Mr. Lott's allegations were proven.

8. Contrary to Mr. Lott's contentions, there was no

evidence that the owners of Sterling Lake have done anything to

cause flooding of the existing homes along Beechdale Court and

Drysdale Drive. In addition, t he water level of Sterling Lake

will not go down as a result of the proposed project since the

inlet to the proposed pipe system will be set at the same

elevation at which water now sheetflows. If redirection of the

sheetflow into the pipe system to help reduce chronic flooding

to the existing homes along Beechdale Court and Drysdale Drive

benefits the owners where the water now sheetflows, the benefits

would appear to be incidental to the willingness of those owners

to cooperate and give the City an easem ent to enable the City to

implement the project. 5

9. T he other four existing drainage retention areas

(besides Pond 1 ) are : Monica Court Pond (Pond 2); a stormwater

pond located on the south side of Bismarck Drive at its

intersection with Matico Avenu e ( Pond 3 ); a stormwater pond

bounded by Bavon Drive on its north side, Temple Drive on its

south side and Arlee Avenue on its west side (Pond 4) ; and the

stormwater pond located on the south side of Chapel Drive

(Pond 5).

10. Interconnection of the fi ve ponds requires both pumped

and gravity outfall systems, owing to the variable topography

within the project area; ground elevations around the five

basins range between to feet NGVD.

11. Pond 1 will be connected to Pond 2 through a pump

stat ion . Pond 2 will be connected to Pond 3 through a pump

station. Pond 3 will be connected to pond 4 through a gr avity

flow system. Pond 4 is currently connected to Pond 5 through an

existing corrugated metal pipe culvert . The existing culvert

will be re placed by a concrete pipe of the same s ize and at the

same elevation.

12. Pond 5 is the terminus of the project; there is no

outfall from Pond 5.

13. An operating schedule is in place to determine when

and under what conditions the pump stations ne ed to be turned on

and off. The operating schedule will allow the five ponds to

operate in concert to optimize the storage capacity of the

system.

C. Wetland Impacts

14. The only wetland within the project is a small,

hydrologically - altered flatwood marsh at Pond 1. The City’s

proposed project will directly impact the entire 1.1 - acre

wetland for the excavation of Pond 1. The value of functions

this wetland provides to fish and wildlife was evaluated using

the five factors in A.H. 12.2.2.3. These fa ctors are condition,

hydrologic connection, uniqueness, location, and fish and

wildl ife utilization.

15. The quality of the w etland to be impacted is degraded .

The wetland once supported a mature canopy of pines over shrubs

and marsh vegetation, but d eep pools (10 – 16 inches deep) of

standing water in the past two - to - five years were sufficient to

kill all the trees. The wetland is sur rounded entirely by urban

uses , including roads and single - family homes. The wetland has

been significantly degraded by the surrounding development,

receipt of untreated storm water run off from adjace nt

properties and roads , and the introduction of trash and debris

fro m surrounding residences . The wetland is surrounded on all

sides by single - family homes, and the trees that provided a

natural canopy that surrounded the wet land ha ve been cleared.

16. The hydrology of the wetland ha s been significantly

altered as a result of ditching , its natural floodplain has been

partly filled, and untreated runoff is directed int o its

watershed from adjacent homes and streets.

17. The wetland to be impacted is not unique.

18. The location of the wetland to be impacted in relation

to its surroundings is not ideal because of the extensive

development that surrounds the wetlan d. The wetland is

surrounded on all sides by single - family homes, with yards that

are mowed down to the wetland fringe.

19. Based upon the degraded condition of the wetland,

there is probably only minimal wildlife utilization. The marsh

may serve as a refuge for urbanized wildlife. However, th at is

unlikely to continue owing to the effects of local disturbance

and hydroperiod alterations from surrounding developed areas.

D. Secondary Impacts

20. Under the first part of the secondary impact criteri on

in A.H. 12.2.7, the City must provide reasonable assurance the

secondary impacts from construction, alteration and intended or

expected uses of the project will not adversely affect the

functions of adjacent wetlands or other surface waters. No

on site wetlands will remain that could suffer adverse secondary

impacts. The project is sufficiently distant from offsite

wetlands to ensure the project will not cause unacceptable,

adverse seconda ry impacts to those wetlands.

21. Under the second part of t he secondary impact

criterion, Deltona must provide reasonable assurance the

construction, alteration, and intended reasonably expected uses

of the system will not adversely impact the ecological value of

th e uplands to aquatic or wetland - dependent listed species for

enabling existing nesting or denning by these species. No

listed species occur onsite , and there are no upland areas on

the project site that are suitable for nesting or denning by

listed species.

22. Under the third part of the secondary i mpact

criterion, and as a part of the public interest test, the

District must consider any other relevant activities that are

very closely linked or causally related to any proposed dredging

or filling which will cause impacts to significant historic al

and archeological resources. When making a determination with

regard to this part of the secondary impact criterion, the

District is required by rule to consult with the Division of

Historical Resources of the Department of State . The District

received info rmation from the Division of Historical Resources

regarding classification of significant historical and

archeological resources and indicating that there would be no

adverse impacts from the project to significant historical or

archeological resources.

23. Under the fourth part of the secondary impact

criterion, Deltona must demonstrate that any future phase of a

project and certain additional project - related activities would

not result in adverse impacts to the functions of wetlands or

result in water quality violations. The proposed project has

been reviewed in its entirety and does not include any future

phases.

E. Mitigation

24. Deltona has proposed offsite mitigation, through the

purchase of 1.2 credits from the Farmington Mitigation Bank, to

o ffset all adverse impacts to wetland functions as a part of its

ERP application.

25. The Farmington Mitigation Bank ( Bank ) provides

permanent, self - sustaining refuges for wildlife. The Bank size

and location enables it to retain many natural character istics

and provide many ecological functions that probably could not be

replicated if mitigation were to be confined to the project

site.

F. Cumulative Impacts

26. The Farmington Mitigation Bank is in the same

regulatory drainage basin as the project s ite, Basin 18. Under

A.H. 12.2.8, a regulated activity is considered not to have

unacceptable cumulative impacts if m itigation offsets the

project ' s adverse impacts within the same basin where the

impacts occur .

G. Reduction and Elimination

27. Distric t staff reviewed the project to determine if

the impacts met the elimination and reduction criteria of the

District’s rules and whether the adverse impacts would be offset

by the mitigation. Under A.H. 12.2.2, reduction and elimination

will not be require d if the ecological value of impacted areas

is low and proposed mitigation will provide greater long - term

ecological value than the wetlands to be impacted, or if the

proposed mitigation implements all or part of a plan that

provides regional ecological va lue.

28. The Farmington Mitigation Bank will improve ecological

conditions of the regional watershed by providing for the

restoration of hydrologic patterns, the enhancement of

significant forested wetland habitat, the enhancement of upland

buffer habi tat, and the improvement of wildlife habitat. The

Bank contributes, in conjunction with adjacent resources, to the

long - term viability of various listed species that are known to

occupy the region.

H. Public Interest Test

29. Under A.H. 12.2.3, t he pu blic interest test applies to

the parts of the project that are in, on or over wetlands, and

such parts must not be contrary to the public interest. If they

are located in, on, or over an Outstanding Florida Water (OFW),

or significantly degrade an OFW, t hen the project must be

clearly in the public interest. No part of this project is

located in, on, over an OFW, or will significantly degrade an

OFW.

30. The public interest test has seven criteria. It is a

balancing test and each factor need not be g iven equal weight.

i. Public health, safety and welfare

31. The project will not cause adverse environmental

impacts to the property of others. The project will not cause

an environmental hazard to public health or safety or cause

flooding on the pro perties of others. The proposed project is

considered neutral as to this factor .

ii. Conservation of Fish and Wildlife and Habitat

32. The project would, without mitigation, adversely

affect the conservation of fish and wildlife and their habitat s .

However, t he proposed mitigation, consisting of the purchase of

1.2 mitigation bank credits, will offset the proposed impacts.

The mitigation implements all or part of a plan that provides

regional ecological value and the proposed mitigation will

pro vide greater long - term ecological value that the wetlands to

be impacted . With the mitigation proposal, the proposed project

is considered positive as to this factor .

iii. Navigation and Flow of Water

33. The proposed project will not adversely affec t

navigation or cause harmful erosion or shoaling. The proposed

project is considered neutral as to this factor.

iv. Fishing, Recreation Value, Marine Productivity

34. The proposed project will not adversely affect

fishing, recreation value, or marin e productivity. The proposed

project is considered neutral as to this factor.

v. Temporary or Permanent

35. The proposed project will be of a permanent nature.

Even though the proposed project is permanent, it is considered

neutral as to this factor b ecause mitigation will offset the

permanent adverse impact.

vi. Historical and Archeological Resources

36. There are no significant archeological or historical

resources recorded within the project site or within any of the

proposed mitigation sites. The proposed project is considered

neutral as to this factor.

vii. Current Condition Relative Value

37. The current condition and relative value of functions

being performed by the areas affected by the proposed activity

is low. The proposed project is considered neutral as to this

factor because the implementation of the mitigation offsets the

wetland impacts.

I. Water Quality

38. The project as proposed will not adversely affect the

quality of receiving waters. The system is in a landlocked

ba sin with no outfall to surface waters of the State .

39. Mr. Lott contended that the project could impact

groundwater quality by changing where surface water is conveyed

and stored. However, he produced no evidence to support his

contention, or counter the evidence presented by the City and

District that there will be no adverse water quality impacts.

His contention is speculative.

J. Engineering and Scientific Principles

40. Based on the information provided by the City and

general engineering pr inciples, the system is capable of

functioning as proposed.

K. Construction, Operation , and Maintenance

41. The evidence demonstrated that the City has the

financial, legal and administrative capability of ensuring the

project will be undertaken in acc ordance with the terms and

conditions of the permit, if issued.

42. The City of Deltona will be responsible for the

operation, maintenance, and repair of the surface water

management system. Under A.H. 7.1.1(a), a local governmental

unit is an accepta ble operation and maintenance entity under

District rules.

L. Water Quantity

43. District staff reviewed the City’s submittal of

detailed engineering modeling and stormwater calculations, and

determined that the project as proposed will not cause adve rse

water quantity impacts to rece iving waters and adjacent lands,

adverse flooding to on - site or off - site property, or adverse

impacts to existing surface water storage and conveyance

capabilities.

M. Shellfish Harvesting Waters

44. The project is not located in, adjacent to or in close

proximity to Class II waters or located in Class II or Class III

waters classified as approved, restricted or conditionally

restricted for shellfish harvesting.

N. Seawalls

45. The project does not contain any verti cal seawalls in

estuaries or lagoons .

O. Other Issues

46. Besides the issues already addressed, and irrelevant

issues raised by him, Mr. Lott's case primarily contends that

reasonable assurances were not provided because all of the

witnesses for the Ci ty and for the District allegedly lied in

this case, or lied in a previous case s (involving the so - called

"Big Ditch," DOAH Case No s . 04 - 2399, etc., and 05 - 3728, etc.)

and cannot be trusted to tell the truth in this case.

Similarl y, he contends that no pe rmit should be issued in this

case until all appeals in the previous cases, which challenge

the veracity of the testimony of the witnesses in those cases,

have been decided. 6 The allegations were not proven, and those

contentions have no merit.

CONCLUSI ONS OF LAW

47. This is a de novo proceeding designed to formulate

final agency action. See Hamilton County 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.

P . ERP Criteria

48. The permitting criteria for the City's proposed

project are found in Rules 40C - 4.301 and 40C - 4.302, as well as

in the A pplicant's Handbook, the applicable portions of which

are adopted by reference in Rule 40C - 4.091(1). For its proposed

project to be permitted, the City must give reasonable assurance

of compliance with those criteria.

49. Reasonable assurance contempl ates 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 elim inate 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 1991, 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).

50. Issuance of an ERP must be based solely on compliance

with applicable permit crit eria. See Council of the Lower Keys

v. Charley Toppino & Sons, Inc. , 429 So. 2d 67 (Fla. 3d DCA

1983). Several issues raised by Mr. Lott, including whether

someone other than the applicant should pay the costs of a

proposed project, or whether there are less expensive

alternatives, are not permit criteria. Indeed, the cost of a

project is not a permit criterion and is not relevant except

insofar it might relate to the applicant's ability to provide

reasonable assurance. See , e.g. , Rule 40C - 4.301(1)(j); A.H.

12.4.8.

51 . Rule 40C - 4.301(1)(a) - (c) require the applicant to

provide reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system:

(a) will not cause adverse water qu antity

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to on -

site or off - site property; and

(c) will not cause adverse impacts to

existing surface water storage and

conveyance capabilities.

52. Rule 40C - 4.301(1)(d) and A.H. 9.1.1(d), 12.1.1(a), and

12.2, et . seq ., require an applicant to provide reasonable

assurance that the construction, alteration, operation,

maintenance, removal, or abandonment of a surface water

management system will not adversely impact the va lue of

functions provided to fish and wildlife and listed species by

wetlands and other surface waters.

53. To qualify for an ERP, an applicant must eliminate or

reduce adverse impacts to the functions of wetlands or other

surface waters caused by a pr oposed system, by implementing

practicable design modifications as described in A.H. 12.2.1.1,

unless either alternative set forth in A.H. 12.2.1.2 applies.

A.H. 12.2.1.2, provides:

The District will not require the applicant

to implement practicable desi gn

modifications to reduce or eliminate impacts

when:

a. the ecological value of the functions

provided by the area of wetland or other

surface water to be adversely affected is

low . . . and the proposed mitigation will

provide greater long term ecologi cal value

than the area of wetland or other surface

water to be adversely affected, or

***

b. the applicant proposes mitigation that

implements all or part of a plan that

provides regional ecological value and that

provides greater long term ecological v alue

than the area of wetland or other surface

water to be adversely affected.

54. Section 373.4136 (1) (a), Florida Statutes , establishes

standards for mitigation banks. To obtain a mitigation bank

permit , an applicant must show, among other things, tha t “[t]he

proposed mitigation bank will improve ecological conditions of

the regional watershed. ” § 373.4136(1) (a), Fla. Stat. In

issuing the mitigation bank permit, the Governing Board found

that the Farmington Mitigation Bank provides regional ecologica l

value.

55. As found, the requirements of A.H. 12.2.1.2 have been

met in this case, and the City was not obligated to implement

design modifications to reduce or eliminate wetland or surface

water impacts.

56. Rule 40C - 4.301(1)(d) and A.H. 9.1.1 ( d), 12.1.1 (a),

and 12.2, et . seq ., require that construction and operation of

the system must not adversely impact the value of functions

provided to fish and wildlife and listed species by wetlands and

other surface waters. To meet those requirements, D eltona was

required to demonstrate compliance with the two - prong test in

A.H. 12.2.2 and 12.2.2.4. See A.H. 12.1.1(a), 12.2.2 and

12.2.2.4.

57. A.H. 12.2.2 requires consideration of whether Deltona

will impact the value of wetlands and surface waters on the site

so as to cause adverse impacts to the abundance, diversity, and

habitat of fish, wildlife and listed species. A.H. 12.2.2.3

sets out the factors that the District considers when assigning

the value of functions that any wetland or other surfa ce water

provides to fish, wildlife, and listed species. They include:

(a) condition; (b) hydrologic connection; (c) uniqueness; (d)

location; and (e) fish and wildlife utilization.

58. The evidence showed that Deltona is proposing to

impact 1.1 acre s of wetlands. As mitigation for these impacts,

Deltona proposes to purchase 1.2 mitigation bank credits. The

evidence showed that the mitigation replaces the functions

provided by the wetlands that will be adversely impacted by the

project. Therefore, the project meets Rule 40C - 4.301(1)(d) .

59. Rule 40C - 4.301(1)(e ) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system will not advers ely affect the quality of

receiving waters such that the water quality standards as set

forth in Rule C hapters 62 - 3, 62 - 4, 62 - 302, 62 - 520, 62 - 522, and

62 - 550, including any antidegradation provisions of Rule 62 -

4.242(1)(a) - (b), (2) , and (3), Rule 62 - 302.300 , and any special

standards for OFW s and Outstanding National Resource Waters set

forth in Rule 62 - 4.242(2) - (3) would be violated.

60. In addition, A.H. 12.2.4 provides in part that

reasonable assurances regarding water quality must be provided

both fo r the short - term and the long - term, addressing the

proposed construction, alteration, operation, maintenance,

removal and abandonment of the system. The system occurs in a

landlocked bas in, has no outfall to receiving waters, and

provides the required wat er qu ality treatment and attenuation.

For these reasons, the project meets Rule 40C - 4.301(1)(e).

61. Rule 40C - 4.301(1)(f ) requires an applicant to provide

reasonable assurance that the system will not cause adverse

secondary impacts to the water resou rces. Compliance with this

Rule is determined by applying the four - part test in A.H.

12.2.7(a) - (d) . As found, Deltona met these criteria.

62. Since n o minimum surface or groundwater levels or

surface water flows in the project area have been establis hed in

Rule Chapter 40C - 8 , the project meets Rule 40C - 4.301(g) .

63. Since t here are no works of the Di strict within the

project area, the project meets Rule 40C - 4.301(h).

64. Rule 40C - 4.301(1)(i) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system will be capable, based on generally

accepted engineering and scientific principles, of being

performed and of functioning as proposed. As found, this

criterion has been met.

65. Rule 40C - 4.301(1)(j) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system will be condu cted by an entity with the

financial, legal and administrative capability of ensuring that

the activity will be undertaken in accordance with the terms and

conditions of the permit, if issued. As found, this criterion

has been met.

66. Since t he proje ct is not located in a special basin or

geographic area as established in Rule 40C - 41, the project meets

Rule 40C - 4.301(1)(k ).

67. Rule 40C - 4.302(1)(a) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

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

other surface waters will not be contrary to the public

interest, or if such an activity significantly degrades or is

within an OFW , that the acti vity will be clearly in the public

interest.

68. Since no part of the system will significantly degrade

or be located within an OFW , t he City was not required to

provide reasonable assurance that the project will be clearly in

the public interest . As found, the City has provided reasonable

assurance that the project is not contrary to the public

interest since the public interest factors were on balance at

least neutral .

69. Rule 40C - 4.302(1)(b) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system will not cause unacceptable cumulative

impacts upon wetlands and other surface waters , as set forth in

A.H. 12.2.8 through 12.2.8.2 . I f an applicant proposes to

mitigate adverse impacts within the same drainage basin as the

impacts, and the mitigation fully offsets the impacts, the

District will consider the regulated activity to have no

unacceptable cumulative impacts upon wetlands and other surface

waters. See A.H. 12.2.8 . Since t he evidence showed the

mitigation for the project is located within the same drainage

basin as the project a nd offsets the adverse impacts, the

project meets the requirements of Rule 40C - 4.302(1)(b) .

70. R ule 40C - 4.302(1)(c) requires an applicant to provide

reasonable assurance that the construction, alteration,

operation, maintenance, removal, or abandonment of a surface

water management system located in, adjacent to or in close

proximity to Class II wate rs or located in Class II waters or

Class III waters classified by the Department as approved,

restricted , or conditionally restricted for shellfish

harvesting , as set forth or incorporated by refer ence in Rule

Chapter 62R - 7, will comply with the additiona l criteria in A.H.

12.2.5. Since t he project is not adjacent to or in close

proximity to waters in those classifications, the requirement of

Rule 40C - 4.302(1)(c) is not applicable.

The project does not contain any vertical seawalls in estuaries

or lag oons; therefore, the requirement of Rule 40C - 4.302(1)(d)

is not applicable.

Q . Burdens of Proof and Persuasion

71 . As applicant, the City 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.

However, u pon presentation of a prima facie case of credible

evidence of reasonable assurances and entitlement to the permit,

the burden of presenting evidence is shifted to the permit

challenger s to present evidence of eq uivalent 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).

72 . In this case, the evidence presente d by the City and

the District established a prima facie case of reasonable

assurances and entitlement to the permit. Based on that

evidence, the permit challenger s had the burden of producing

evidence of equivalent quality to refute the prima facie case.

Their burden cannot be met by mere speculation on what might

occur. Citizens 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 Regulation , 11 F.A.L.R. 467, 480 - 481, 1988 WL

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

73 . In this case, the Petitioner in DOAH Case No. 05 - 3664

is subject to dismissal for failure to partic ipate in the final

hearing. Mr. Lott participated, but most of the issues he

raised were not relevant to the permitting criteria, and he

presented no substantive evidence . As found, the City proved

its entitlement to the permit by a preponderance of the

evidence. See Fireman’s Fund Indemnity Co. v. Perry , 5 So. 2d

862 (Fla. 1942).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order i ssuing to the City of Deltona an

ERP granting the City's Application No. 4 - 127 - 97380 - 1 , subject

to the conditions set forth in the Technical Staff Report.

DONE AND ENTERED this 17th 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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of March , 2006 .

ENDNOTES

1/ All Rule references are to the current version of the

Florida Administrative Code.

2/ The sections of the handbook relevant to this proceeding

have been adopted by reference in Rule 40C - 4.091(1). They will

be designated by A.H. and the section number.

3/ All statutory references are to the 2005 codification of the

Florida Statutes.

4/ The proj ect is within the Theresa Bas in ; h owever, the 840 -

acre project area is in what has been referred to as a sub -

basin, and has no outfall to Lake Theresa. Although Lake

McGarity is referred to as the "Receiving Water Body" in the

Technical Staff Report dated September 26, 2005, the syst em

actually is land - locked.

5/ ERP General Condition 8 requires the necessary easements to

be submitted to the District for approval.

6/ Mr. Lott appears to be under the mistaken belief that

appeals from the final orders in those cases are pending. In

fact, according to the appellate court's online docket, the

appeal from Case Nos. 04 - 2399, etc., was dismissed on

October 11, 2005, and there is no record of any appeal being

taken from Case Nos. 05 - 3728, etc. ( Cf. www.5dca.org and

www.doah.state.fl. us ) Although a paper indicating an intent to

appeal to the Florida Land and Water Adjudicatory Commission

(FLWAC) was filed in the DOAH docket on January 20, 2006, the

paper does not appear to have been filed with FLWAC.

COPIES FURNISHED :

Kirby Green , Executive Director

St. John River Water Management

District

4049 Reid Street

Palatka, Florida 32177

Phillip Lott

948 North Watt Circle

Deltona, Florida 32738 - 7919

George Jovato, Esquire

City of Deltona

2345 Providence Boulevard

Deltona, Florida 32725

Kealey A. West, Esquire

St. Johns River Water Management

District

4049 Reid Street

Palatka, Florida 32177 - 2529

Steven L. Spratt

2492 Weatherford Drive

Deltona, Florida 32738

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right t o 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.