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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PHILLIP LOTT and STEVEN L. )

14SPRATT, )

16)

17Petitioners, )

19) Case Nos. 05 - 3662

25vs. ) 05 - 3664

30)

31CITY OF DELTONA and ST. JOHNS )

38WATER MANAGEMENT DISTRICT, )

42)

43Respondents. )

45)

46RECOMMENDED ORDER

48A final administrative hearing was held in this case on

58January 24, 2006, in Deltona, Florida, before J. Lawrence

67Johnston, Administrative Law Judge, Division of Administrative

74Hearings.

75APPEARANCES

76F or Petitioner : Phillip Lott , pro se

84948 N. Watt Circle

88Deltona, Florida 32738

91For Respondent S t . J ohns R iver W ater M anagement District:

105Kealey A. West, Esquire

109St. Johns River Water Management District

1154049 Reid Street

118Palatka, Fl orida 32177

122For Respondent C ity of D eltona:

129George Trovato, Esquire

132City of Deltona

1352345 Providence Boulevard

138Deltona, Florida 32725

141STATEMENT OF THE ISSUE

145This case involves a challenge to St. Johns Rive r Water

156Management District’s (Di strict or SJRWMD) intended issuance of

165an Environmental Resource Permit (ERP) granting the City's

173Application No. 4 - 127 - 97380 - 1, for the construction and

186operation of a surface water management system for a retrofit

196flood - relief project known as Drysdale D rive/Chapel Drive

206Drainage Improvements consisting of: excavation of the Drysdale

214Drive pond (Pond 1); improvement to the ou tfall at Sterling

225Lake; and the interconnection of Pond 1 and four existing

235drainage retention areas through a combination of pump stations

244and gravity outfalls (project or system ). The issue is whether

255the applicant, the City of Deltona (City or Deltona), has

265provided reasonable assurance the system complies with the water

274quantity, environmental, and water quality criteria of the

282D istrict’s ERP regulations set forth in Chapter 40C - 4, Florida

294Administrative Code , 1 and the Applicant’s Handbook: Management

302and Storage of Surface Waters (2005) (A.H.). 2

310PRELIMINARY STATEMENT

312The Petitioners received notice of , a nd timely filed

321petit ions for an administrative hearing challenging , the

329District’s proposed issuance of the ERP. The matters were

338referred to the Division of Administrati ve Hearings (DOAH) to

348conduct an administrative hearing pursuant to Sect ion 120.57(1),

357Florida Statutes . 3 The cases were consolidated and scheduled for

368final hearing on January 24 - 25, 2006, in Deltona, Florida .

380On January 19, 2006, the District's Motion for Official

389Recognition of the pertinent statutes and rules was filed and

399granted without objection.

402Th e Petitioner in Case No. 05 - 3664 , Steve n L. Spratt, did

416not participate in any of the required prehearing procedures and

426did not appear at the final hearing. His petition is subject to

438dismiss al for failure to participate.

444At the outset of the hearin g, the Petitioner in DOAH Case

456No. 05 - 3662, Phillip Lott, raised a new issue -- namely, whether

469the City was the proper entity to apply for the permit at issue

482and to pay the cost of constructing, maintaining, and operating

492the proposed project. He alleged that Sterling Lake, the source

502of the water being managed by the proposed project, is

512privately - owned and that the owners of the lake, who are

524developers, should apply and pay for the project. Mr. Lott's

534request s to address only those issues in the final hearing and

546then for a summary recommended order were denied. Then, the

556parties agreed that this issue would be addressed in the final

567hearing.

568At the hearing, the City presented the testimony of:

577Michael Galura, engineer of record for the system; Don ald J.

588Silverberg, an expert in wetlands; and Gle nn Kerns, Director of

599Public Works for the City of Deltona . City Exhibits 1 - 6 were

613admitted in evidence. The District presented testimony from:

621Lee Kissick, an expert in wetland and wildlife ecology,

630miti gation planning, wetland delineation and environmental

637resource permitting and regulations; and Marjorie Cook, an

645expert in water resource engineering, surface water and

653stormwater management systems, and environmental resource

659permitting and regulation. SJRWMD Exhibits 1, 2, and 3 were

669admitted in evidence. The Petitioner in Case No. 05 - 3662,

680Phillip Lott , testified in his own behalf but called no other

691witnesses and offered no exhibits in evidence.

698After presentations of evidence, the District ordere d a

707transcript of the hearing, and the parties were given ten days

718from the filing of the Transcript to file proposed recommended

728orders (PROs). The District, the City, and Mr. Lott timely

738filed PROs.

740FINDING OF FACTS

743A. Site Description

7461. The City o f Deltona is located in Southwes t Volusia

758County . The City was built on a broad sand ridge that was

771historically dominated by sand - pine forest interspersed with

780sinks, shallow lakes a nd isolated, seasonal marshes . The City's

791infrastructure was largely de signed and constructed in the

8001960s - 1970s; the City was incorporated in 1995.

8092. As a result of rainfall in 2002, residents located

819around the Beechdale Court and Drysdale Drive area s experienced

829major flooding. To provide flood relief to this area, t he City

841of Deltona has proposed a project to retrofit and expand some of

853its existing drainage system to improve efficiency and optimize

862storage capacity for the 840 - acre landlocked basin. 4

872B. The Project

8753. The project consists of three elements: (1) ex cavation

885of the Drysdale Drive retention pond (Pond 1) ; (2) improvement

895to the o utfall at Sterling Lake; and (3) the interconnection of

907Beechdale Court pond and four existing drainage retention areas

916through a combination of pump stations and gravity outfa lls.

9264. Pond 1 has chronically flooded the rear of adjacent

936homes along Drysdale Drive ; the excavation will provide a larger

946permanent water body to better manage surface water runof f .

9575. The improvement to the Sterling Lake outfall is to

967reduce chronic flooding to homes along Beechdale Court.

975Currently, when Sterling Lake exceeds its bank, water sheetflows

984to the northeast , directly into the rear of the homes along

995Beechdale Court. With the proposed improvement, water will be

1004captured at a poin t to the north of Sterling Lake and redirected

1017t hrough a piped, gravity outfall system through a dedicated

1027easement into th e Beechdale Court pond. From there, water flows

1038through an existing, maintained culvert under Fort Smith Drive

1047into Pond 1.

10506. M r. Lott contends that this aspect of the proposed

1061system benefits the owner (s) of Sterling Lake. He contends that

1072Sterling Lake is the cause of the flooding problems and that its

1084owners should be made responsible and should be required to

1094apply for the pe rmit and pay for the project instead of the

1107City. However, there was no evidence to suggest that the owners

1118of Sterling Lake are responsible for flooding.

11257. Mr. Lott also suggests that , through this permit, the

1135City will be paying to redirect water a way from where it

1147sheetflows out of Sterling Lake when it exceeds its banks during

1158heavy rains in order to make that property suitable for

1168residential development for the benefit of the owners of

1177Sterling Lake, who are developers . He also seemed to conten d

1189that the project would lower the water level of Sterling Lake to

1201enlarge their developable land. H e believes that the private

1211owner s receiving these benefit s are required to apply for the

1223ERP and pay for the costs involved . H e contends in his PRO that

1238the City is instead spreading the cost to taxpayers to redirect

1249flood waters " from one neighborhood of upper middle class homes

1259to another, of lower socio - economic status, in order to allow

1271more development in the richer area, all at taxpayer expense."

1281No ne of Mr. Lott's allegations were proven.

12898. Contrary to Mr. Lott's contentions, there was no

1298evidence that the owners of Sterling Lake have done anything to

1309cause flooding of the existing homes along Beechdale Court and

1319Drysdale Drive. In addition, t he water level of Sterling Lake

1330will not go down as a result of the proposed project since the

1343inlet to the proposed pipe system will be set at the same

1355elevation at which water now sheetflows. If redirection of the

1365sheetflow into the pipe system to help reduce chronic flooding

1375to the existing homes along Beechdale Court and Drysdale Drive

1385benefits the owners where the water now sheetflows, the benefits

1395would appear to be incidental to the willingness of those owners

1406to cooperate and give the City an easem ent to enable the City to

1420implement the project. 5

14249. T he other four existing drainage retention areas

1433(besides Pond 1 ) are : Monica Court Pond (Pond 2); a stormwater

1446pond located on the south side of Bismarck Drive at its

1457intersection with Matico Avenu e ( Pond 3 ); a stormwater pond

1469bounded by Bavon Drive on its north side, Temple Drive on its

1481south side and Arlee Avenue on its west side (Pond 4) ; and the

1494stormwater pond located on the south side of Chapel Drive

1504(Pond 5).

150610. Interconnection of the fi ve ponds requires both pumped

1516and gravity outfall systems, owing to the variable topography

1525within the project area; ground elevations around the five

1534basins range between to feet NGVD.

154011. Pond 1 will be connected to Pond 2 through a pump

1552stat ion . Pond 2 will be connected to Pond 3 through a pump

1566station. Pond 3 will be connected to pond 4 through a gr avity

1579flow system. Pond 4 is currently connected to Pond 5 through an

1591existing corrugated metal pipe culvert . The existing culvert

1600will be re placed by a concrete pipe of the same s ize and at the

1616same elevation.

161812. Pond 5 is the terminus of the project; there is no

1630outfall from Pond 5.

163413. An operating schedule is in place to determine when

1644and under what conditions the pump stations ne ed to be turned on

1657and off. The operating schedule will allow the five ponds to

1668operate in concert to optimize the storage capacity of the

1678system.

1679C. Wetland Impacts

168214. The only wetland within the project is a small,

1692hydrologically - altered flatwood marsh at Pond 1. The City’s

1702proposed project will directly impact the entire 1.1 - acre

1712wetland for the excavation of Pond 1. The value of functions

1723this wetland provides to fish and wildlife was evaluated using

1733the five factors in A.H. 12.2.2.3. These fa ctors are condition,

1744hydrologic connection, uniqueness, location, and fish and

1751wildl ife utilization.

175415. The quality of the w etland to be impacted is degraded .

1767The wetland once supported a mature canopy of pines over shrubs

1778and marsh vegetation, but d eep pools (10 – 16 inches deep) of

1791standing water in the past two - to - five years were sufficient to

1805kill all the trees. The wetland is sur rounded entirely by urban

1817uses , including roads and single - family homes. The wetland has

1828been significantly degraded by the surrounding development,

1835receipt of untreated storm water run off from adjace nt

1845properties and roads , and the introduction of trash and debris

1855fro m surrounding residences . The wetland is surrounded on all

1866sides by single - family homes, and the trees that provided a

1878natural canopy that surrounded the wet land ha ve been cleared.

188916. The hydrology of the wetland ha s been significantly

1899altered as a result of ditching , its natural floodplain has been

1910partly filled, and untreated runoff is directed int o its

1920watershed from adjacent homes and streets.

192617. The wetland to be impacted is not unique.

193518. The location of the wetland to be impacted in relation

1946to its surroundings is not ideal because of the extensive

1956development that surrounds the wetlan d. The wetland is

1965surrounded on all sides by single - family homes, with yards that

1977are mowed down to the wetland fringe.

198419. Based upon the degraded condition of the wetland,

1993there is probably only minimal wildlife utilization. The marsh

2002may serve as a refuge for urbanized wildlife. However, th at is

2014unlikely to continue owing to the effects of local disturbance

2024and hydroperiod alterations from surrounding developed areas.

2031D. Secondary Impacts

203420. Under the first part of the secondary impact criteri on

2045in A.H. 12.2.7, the City must provide reasonable assurance the

2055secondary impacts from construction, alteration and intended or

2063expected uses of the project will not adversely affect the

2073functions of adjacent wetlands or other surface waters. No

2082on site wetlands will remain that could suffer adverse secondary

2092impacts. The project is sufficiently distant from offsite

2100wetlands to ensure the project will not cause unacceptable,

2109adverse seconda ry impacts to those wetlands.

211621. Under the second part of t he secondary impact

2126criterion, Deltona must provide reasonable assurance the

2133construction, alteration, and intended reasonably expected uses

2140of the system will not adversely impact the ecological value of

2151th e uplands to aquatic or wetland - dependent listed species for

2163enabling existing nesting or denning by these species. No

2172listed species occur onsite , and there are no upland areas on

2183the project site that are suitable for nesting or denning by

2194listed species.

219622. Under the third part of the secondary i mpact

2206criterion, and as a part of the public interest test, the

2217District must consider any other relevant activities that are

2226very closely linked or causally related to any proposed dredging

2236or filling which will cause impacts to significant historic al

2246and archeological resources. When making a determination with

2254regard to this part of the secondary impact criterion, the

2264District is required by rule to consult with the Division of

2275Historical Resources of the Department of State . The District

2285received info rmation from the Division of Historical Resources

2294regarding classification of significant historical and

2300archeological resources and indicating that there would be no

2309adverse impacts from the project to significant historical or

2318archeological resources.

232023. Under the fourth part of the secondary impact

2329criterion, Deltona must demonstrate that any future phase of a

2339project and certain additional project - related activities would

2348not result in adverse impacts to the functions of wetlands or

2359result in water quality violations. The proposed project has

2368been reviewed in its entirety and does not include any future

2379phases.

2380E. Mitigation

238224. Deltona has proposed offsite mitigation, through the

2390purchase of 1.2 credits from the Farmington Mitigation Bank, to

2400o ffset all adverse impacts to wetland functions as a part of its

2413ERP application.

241525. The Farmington Mitigation Bank ( Bank ) provides

2424permanent, self - sustaining refuges for wildlife. The Bank size

2434and location enables it to retain many natural character istics

2444and provide many ecological functions that probably could not be

2454replicated if mitigation were to be confined to the project

2464site.

2465F. Cumulative Impacts

246826. The Farmington Mitigation Bank is in the same

2477regulatory drainage basin as the project s ite, Basin 18. Under

2488A.H. 12.2.8, a regulated activity is considered not to have

2498unacceptable cumulative impacts if m itigation offsets the

2506project ' s adverse impacts within the same basin where the

2517impacts occur .

2520G. Reduction and Elimination

252427. Distric t staff reviewed the project to determine if

2534the impacts met the elimination and reduction criteria of the

2544District’s rules and whether the adverse impacts would be offset

2554by the mitigation. Under A.H. 12.2.2, reduction and elimination

2563will not be require d if the ecological value of impacted areas

2575is low and proposed mitigation will provide greater long - term

2586ecological value than the wetlands to be impacted, or if the

2597proposed mitigation implements all or part of a plan that

2607provides regional ecological va lue.

261228. The Farmington Mitigation Bank will improve ecological

2620conditions of the regional watershed by providing for the

2629restoration of hydrologic patterns, the enhancement of

2636significant forested wetland habitat, the enhancement of upland

2644buffer habi tat, and the improvement of wildlife habitat. The

2654Bank contributes, in conjunction with adjacent resources, to the

2663long - term viability of various listed species that are known to

2675occupy the region.

2678H. Public Interest Test

268229. Under A.H. 12.2.3, t he pu blic interest test applies to

2694the parts of the project that are in, on or over wetlands, and

2707such parts must not be contrary to the public interest. If they

2719are located in, on, or over an Outstanding Florida Water (OFW),

2730or significantly degrade an OFW, t hen the project must be

2741clearly in the public interest. No part of this project is

2752located in, on, over an OFW, or will significantly degrade an

2763OFW.

276430. The public interest test has seven criteria. It is a

2775balancing test and each factor need not be g iven equal weight.

2787i. Public health, safety and welfare

279331. The project will not cause adverse environmental

2801impacts to the property of others. The project will not cause

2812an environmental hazard to public health or safety or cause

2822flooding on the pro perties of others. The proposed project is

2833considered neutral as to this factor .

2840ii. Conservation of Fish and Wildlife and Habitat

284832. The project would, without mitigation, adversely

2855affect the conservation of fish and wildlife and their habitat s .

2867However, t he proposed mitigation, consisting of the purchase of

28771.2 mitigation bank credits, will offset the proposed impacts.

2886The mitigation implements all or part of a plan that provides

2897regional ecological value and the proposed mitigation will

2905pro vide greater long - term ecological value that the wetlands to

2917be impacted . With the mitigation proposal, the proposed project

2927is considered positive as to this factor .

2935iii. Navigation and Flow of Water

294133. The proposed project will not adversely affec t

2950navigation or cause harmful erosion or shoaling. The proposed

2959project is considered neutral as to this factor.

2967iv. Fishing, Recreation Value, Marine Productivity

297334. The proposed project will not adversely affect

2981fishing, recreation value, or marin e productivity. The proposed

2990project is considered neutral as to this factor.

2998v. Temporary or Permanent

300235. The proposed project will be of a permanent nature.

3012Even though the proposed project is permanent, it is considered

3022neutral as to this factor b ecause mitigation will offset the

3033permanent adverse impact.

3036vi. Historical and Archeological Resources

304136. There are no significant archeological or historical

3049resources recorded within the project site or within any of the

3060proposed mitigation sites. The proposed project is considered

3068neutral as to this factor.

3073vii. Current Condition Relative Value

307837. The current condition and relative value of functions

3087being performed by the areas affected by the proposed activity

3097is low. The proposed project is considered neutral as to this

3108factor because the implementation of the mitigation offsets the

3117wetland impacts.

3119I. Water Quality

312238. The project as proposed will not adversely affect the

3132quality of receiving waters. The system is in a landlocked

3142ba sin with no outfall to surface waters of the State .

315439. Mr. Lott contended that the project could impact

3163groundwater quality by changing where surface water is conveyed

3172and stored. However, he produced no evidence to support his

3182contention, or counter the evidence presented by the City and

3192District that there will be no adverse water quality impacts.

3202His contention is speculative.

3206J. Engineering and Scientific Principles

321140. Based on the information provided by the City and

3221general engineering pr inciples, the system is capable of

3230functioning as proposed.

3233K. Construction, Operation , and Maintenance

323841. The evidence demonstrated that the City has the

3247financial, legal and administrative capability of ensuring the

3255project will be undertaken in acc ordance with the terms and

3266conditions of the permit, if issued.

327242. The City of Deltona will be responsible for the

3282operation, maintenance, and repair of the surface water

3290management system. Under A.H. 7.1.1(a), a local governmental

3298unit is an accepta ble operation and maintenance entity under

3308District rules.

3310L. Water Quantity

331343. District staff reviewed the City’s submittal of

3321detailed engineering modeling and stormwater calculations, and

3328determined that the project as proposed will not cause adve rse

3339water quantity impacts to rece iving waters and adjacent lands,

3349adverse flooding to on - site or off - site property, or adverse

3362impacts to existing surface water storage and conveyance

3370capabilities.

3371M. Shellfish Harvesting Waters

337544. The project is not located in, adjacent to or in close

3387proximity to Class II waters or located in Class II or Class III

3400waters classified as approved, restricted or conditionally

3407restricted for shellfish harvesting.

3411N. Seawalls

341345. The project does not contain any verti cal seawalls in

3424estuaries or lagoons .

3428O. Other Issues

343146. Besides the issues already addressed, and irrelevant

3439issues raised by him, Mr. Lott's case primarily contends that

3449reasonable assurances were not provided because all of the

3458witnesses for the Ci ty and for the District allegedly lied in

3470this case, or lied in a previous case s (involving the so - called

"3484Big Ditch," DOAH Case No s . 04 - 2399, etc., and 05 - 3728, etc.)

3500and cannot be trusted to tell the truth in this case.

3511Similarl y, he contends that no pe rmit should be issued in this

3524case until all appeals in the previous cases, which challenge

3534the veracity of the testimony of the witnesses in those cases,

3545have been decided. 6 The allegations were not proven, and those

3556contentions have no merit.

3560CONCLUSI ONS OF LAW

356447. This is a de novo proceeding designed to formulate

3574final agency action. See Hamilton County Board of County

3583Commissioners v. State Department of Environmental Regulation ,

3590587 So. 2d 1378, 1387 - 1388 (Fla. 1st DCA 1991); Florida

3602Department of Transportation v. J.W.C. Company, In c., 396 So. 2d

3613778, 786 - 787 (Fla. 1st DCA 1981); § 120.57(1)(k), Fla.Stat.

3624P . ERP Criteria

362848. The permitting criteria for the City's proposed

3636project are found in Rules 40C - 4.301 and 40C - 4.302, as well as

3651in the A pplicant's Handbook, the applicable portions of which

3661are adopted by reference in Rule 40C - 4.091(1). For its proposed

3673project to be permitted, the City must give reasonable assurance

3683of compliance with those criteria.

368849. Reasonable assurance contempl ates a substantial

3695likelihood that the project will be successfully implemented.

3703See Metropolitan Dade County v. Coscan Florida Inc ., 609 So. 2d

3715644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary,

3725and a permit applicant is not required to elim inate all contrary

3737possibilities or address impacts that are only theoretical and

3746cannot be measured in real life. See City of Sunrise v. Indian

3758Trace Community Development District, et al. , DOAH Case No. 91 -

37696036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD

37821992); Manasota - 88 Inc. v. Agrico Chemical Co. and Department of

3794Environmental Regulation , DOAH Case No. 87 - 2433, 1990 Fla. ENV

3805LEXIS 38 (DER 1990).

380950. Issuance of an ERP must be based solely on compliance

3820with applicable permit crit eria. See Council of the Lower Keys

3831v. Charley Toppino & Sons, Inc. , 429 So. 2d 67 (Fla. 3d DCA

38441983). Several issues raised by Mr. Lott, including whether

3853someone other than the applicant should pay the costs of a

3864proposed project, or whether there are less expensive

3872alternatives, are not permit criteria. Indeed, the cost of a

3882project is not a permit criterion and is not relevant except

3893insofar it might relate to the applicant's ability to provide

3903reasonable assurance. See , e.g. , Rule 40C - 4.301(1)(j); A.H.

391212.4.8.

391351 . Rule 40C - 4.301(1)(a) - (c) require the applicant to

3925provide reasonable assurance that the construction, alteration,

3932operation, maintenance, removal, or abandonment of a surface

3940water management system:

3943(a) will not cause adverse water qu antity

3951impacts to receiving waters and adjacent

3957lands;

3958(b) will not cause adverse flooding to on -

3967site or off - site property; and

3974(c) will not cause adverse impacts to

3981existing surface water storage and

3986conveyance capabilities.

398852. Rule 40C - 4.301(1)(d) and A.H. 9.1.1(d), 12.1.1(a), and

399812.2, et . seq ., require an applicant to provide reasonable

4009assurance that the construction, alteration, operation,

4015maintenance, removal, or abandonment of a surface water

4023management system will not adversely impact the va lue of

4033functions provided to fish and wildlife and listed species by

4043wetlands and other surface waters.

404853. To qualify for an ERP, an applicant must eliminate or

4059reduce adverse impacts to the functions of wetlands or other

4069surface waters caused by a pr oposed system, by implementing

4079practicable design modifications as described in A.H. 12.2.1.1,

4087unless either alternative set forth in A.H. 12.2.1.2 applies.

4096A.H. 12.2.1.2, provides:

4099The District will not require the applicant

4106to implement practicable desi gn

4111modifications to reduce or eliminate impacts

4117when:

4118a. the ecological value of the functions

4125provided by the area of wetland or other

4133surface water to be adversely affected is

4140low . . . and the proposed mitigation will

4149provide greater long term ecologi cal value

4156than the area of wetland or other surface

4164water to be adversely affected, or

4170***

4171b. the applicant proposes mitigation that

4177implements all or part of a plan that

4185provides regional ecological value and that

4191provides greater long term ecological v alue

4198than the area of wetland or other surface

4206water to be adversely affected.

421154. Section 373.4136 (1) (a), Florida Statutes , establishes

4219standards for mitigation banks. To obtain a mitigation bank

4228permit , an applicant must show, among other things, tha t “[t]he

4239proposed mitigation bank will improve ecological conditions of

4247the regional watershed. ” § 373.4136(1) (a), Fla. Stat. In

4257issuing the mitigation bank permit, the Governing Board found

4266that the Farmington Mitigation Bank provides regional ecologica l

4275value.

427655. As found, the requirements of A.H. 12.2.1.2 have been

4286met in this case, and the City was not obligated to implement

4298design modifications to reduce or eliminate wetland or surface

4307water impacts.

430956. Rule 40C - 4.301(1)(d) and A.H. 9.1.1 ( d), 12.1.1 (a),

4321and 12.2, et . seq ., require that construction and operation of

4333the system must not adversely impact the value of functions

4343provided to fish and wildlife and listed species by wetlands and

4354other surface waters. To meet those requirements, D eltona was

4364required to demonstrate compliance with the two - prong test in

4375A.H. 12.2.2 and 12.2.2.4. See A.H. 12.1.1(a), 12.2.2 and

438412.2.2.4.

438557. A.H. 12.2.2 requires consideration of whether Deltona

4393will impact the value of wetlands and surface waters on the site

4405so as to cause adverse impacts to the abundance, diversity, and

4416habitat of fish, wildlife and listed species. A.H. 12.2.2.3

4425sets out the factors that the District considers when assigning

4435the value of functions that any wetland or other surfa ce water

4447provides to fish, wildlife, and listed species. They include:

4456(a) condition; (b) hydrologic connection; (c) uniqueness; (d)

4464location; and (e) fish and wildlife utilization.

447158. The evidence showed that Deltona is proposing to

4480impact 1.1 acre s of wetlands. As mitigation for these impacts,

4491Deltona proposes to purchase 1.2 mitigation bank credits. The

4500evidence showed that the mitigation replaces the functions

4508provided by the wetlands that will be adversely impacted by the

4519project. Therefore, the project meets Rule 40C - 4.301(1)(d) .

452959. Rule 40C - 4.301(1)(e ) requires an applicant to provide

4540reasonable assurance that the construction, alteration,

4546operation, maintenance, removal, or abandonment of a surface

4554water management system will not advers ely affect the quality of

4565receiving waters such that the water quality standards as set

4575forth in Rule C hapters 62 - 3, 62 - 4, 62 - 302, 62 - 520, 62 - 522, and

459662 - 550, including any antidegradation provisions of Rule 62 -

46074.242(1)(a) - (b), (2) , and (3), Rule 62 - 302.300 , and any special

4620standards for OFW s and Outstanding National Resource Waters set

4630forth in Rule 62 - 4.242(2) - (3) would be violated.

464160. In addition, A.H. 12.2.4 provides in part that

4650reasonable assurances regarding water quality must be provided

4658both fo r the short - term and the long - term, addressing the

4672proposed construction, alteration, operation, maintenance,

4677removal and abandonment of the system. The system occurs in a

4688landlocked bas in, has no outfall to receiving waters, and

4698provides the required wat er qu ality treatment and attenuation.

4708For these reasons, the project meets Rule 40C - 4.301(1)(e).

471861. Rule 40C - 4.301(1)(f ) requires an applicant to provide

4729reasonable assurance that the system will not cause adverse

4738secondary impacts to the water resou rces. Compliance with this

4748Rule is determined by applying the four - part test in A.H.

476012.2.7(a) - (d) . As found, Deltona met these criteria.

477062. Since n o minimum surface or groundwater levels or

4780surface water flows in the project area have been establis hed in

4792Rule Chapter 40C - 8 , the project meets Rule 40C - 4.301(g) .

480563. Since t here are no works of the Di strict within the

4818project area, the project meets Rule 40C - 4.301(h).

482764. Rule 40C - 4.301(1)(i) requires an applicant to provide

4837reasonable assurance that the construction, alteration,

4843operation, maintenance, removal, or abandonment of a surface

4851water management system will be capable, based on generally

4860accepted engineering and scientific principles, of being

4867performed and of functioning as proposed. As found, this

4876criterion has been met.

488065. Rule 40C - 4.301(1)(j) requires an applicant to provide

4890reasonable assurance that the construction, alteration,

4896operation, maintenance, removal, or abandonment of a surface

4904water management system will be condu cted by an entity with the

4916financial, legal and administrative capability of ensuring that

4924the activity will be undertaken in accordance with the terms and

4935conditions of the permit, if issued. As found, this criterion

4945has been met.

494866. Since t he proje ct is not located in a special basin or

4962geographic area as established in Rule 40C - 41, the project meets

4974Rule 40C - 4.301(1)(k ).

497967. Rule 40C - 4.302(1)(a) requires an applicant to provide

4989reasonable assurance that the construction, alteration,

4995operation, maintenance, removal, or abandonment of a surface

5003water management system located in, on, or over wetlands or

5013other surface waters will not be contrary to the public

5023interest, or if such an activity significantly degrades or is

5033within an OFW , that the acti vity will be clearly in the public

5046interest.

504768. Since no part of the system will significantly degrade

5057or be located within an OFW , t he City was not required to

5070provide reasonable assurance that the project will be clearly in

5080the public interest . As found, the City has provided reasonable

5091assurance that the project is not contrary to the public

5101interest since the public interest factors were on balance at

5111least neutral .

511469. Rule 40C - 4.302(1)(b) requires an applicant to provide

5124reasonable assurance that the construction, alteration,

5130operation, maintenance, removal, or abandonment of a surface

5138water management system will not cause unacceptable cumulative

5146impacts upon wetlands and other surface waters , as set forth in

5157A.H. 12.2.8 through 12.2.8.2 . I f an applicant proposes to

5168mitigate adverse impacts within the same drainage basin as the

5178impacts, and the mitigation fully offsets the impacts, the

5187District will consider the regulated activity to have no

5196unacceptable cumulative impacts upon wetlands and other surface

5204waters. See A.H. 12.2.8 . Since t he evidence showed the

5215mitigation for the project is located within the same drainage

5225basin as the project a nd offsets the adverse impacts, the

5236project meets the requirements of Rule 40C - 4.302(1)(b) .

524670. R ule 40C - 4.302(1)(c) requires an applicant to provide

5257reasonable assurance that the construction, alteration,

5263operation, maintenance, removal, or abandonment of a surface

5271water management system located in, adjacent to or in close

5281proximity to Class II wate rs or located in Class II waters or

5294Class III waters classified by the Department as approved,

5303restricted , or conditionally restricted for shellfish

5309harvesting , as set forth or incorporated by refer ence in Rule

5320Chapter 62R - 7, will comply with the additiona l criteria in A.H.

533312.2.5. Since t he project is not adjacent to or in close

5345proximity to waters in those classifications, the requirement of

5354Rule 40C - 4.302(1)(c) is not applicable.

5361The project does not contain any vertical seawalls in estuaries

5371or lag oons; therefore, the requirement of Rule 40C - 4.302(1)(d)

5382is not applicable.

5385Q . Burdens of Proof and Persuasion

539271 . As applicant, the City has the ultimate burden of

5403proof and burden of persuasion. See Florida Department of

5412Transportation v. J.W.C. Company, Inc ., supra at 786 - 789.

5423However, u pon presentation of a prima facie case of credible

5434evidence of reasonable assurances and entitlement to the permit,

5443the burden of presenting evidence is shifted to the permit

5453challenger s to present evidence of eq uivalent quality to refute

5464the applicant’s evidence of reasonable assurances and

5471entitlement to the permit. Id. ; Ward v. Okaloosa County , DOAH

5481Case No. 88 - 5147, 1989 Fla. ENV LEXIS 105, 89 ER FALR 83 (DER

54961989).

549772 . In this case, the evidence presente d by the City and

5510the District established a prima facie case of reasonable

5519assurances and entitlement to the permit. Based on that

5528evidence, the permit challenger s had the burden of producing

5538evidence of equivalent quality to refute the prima facie case.

5548Their burden cannot be met by mere speculation on what might

5559occur. Citizens Against Blasting Inc., v. Department of

5567Environmental Protection and Angelo’s Aggregate Materials Ltd .,

5575DOAH Case No. 00 - 4007, 2001 Fla. ENV LEXIS 31, 1 ER FALR 94 (DEP

55912001); Chipola Basin Protective Group Inc., et al. v. Department

5601of Environmental Regulation , 11 F.A.L.R. 467, 480 - 481, 1988 WL

5612185574, at *3 - 7 (DER 1988).

561973 . In this case, the Petitioner in DOAH Case No. 05 - 3664

5633is subject to dismissal for failure to partic ipate in the final

5645hearing. Mr. Lott participated, but most of the issues he

5655raised were not relevant to the permitting criteria, and he

5665presented no substantive evidence . As found, the City proved

5675its entitlement to the permit by a preponderance of the

5685evidence. See Fireman’s Fund Indemnity Co. v. Perry , 5 So. 2d

5696862 (Fla. 1942).

5699RECOMMENDATION

5700Based upon the foregoing Findings of Fact and Conclusions

5709of Law, it is

5713RECOMMENDED that the St. Johns River Water Management

5721District enter a final order i ssuing to the City of Deltona an

5734ERP granting the City's Application No. 4 - 127 - 97380 - 1 , subject

5748to the conditions set forth in the Technical Staff Report.

5758DONE AND ENTERED this 17th day of March, 2006, in

5768Tallahassee, Leon County, Florida.

5772S

5773J. LAWRENCE JOHNSTON

5776Administrative Law Judge

5779Division of Administrative Hearings

5783The DeSoto Building

57861230 Apalachee Parkway

5789Tallahassee, Florida 32399 - 3060

5794(850) 488 - 9675 SUNCOM 278 - 9675

5802Fax Filing (850) 921 - 6847

5808www.doa h.state.fl.us

5810Filed with the Clerk of the

5816Division of Administrative Hearings

5820this 17th day of March , 2006 .

5827ENDNOTES

58281/ All Rule references are to the current version of the

5839Florida Administrative Code.

58422/ The sections of the handbook relevant to this proceeding

5852have been adopted by reference in Rule 40C - 4.091(1). They will

5864be designated by A.H. and the section number.

58723/ All statutory references are to the 2005 codification of the

5883Florida Statutes.

58854/ The proj ect is within the Theresa Bas in ; h owever, the 840 -

5900acre project area is in what has been referred to as a sub -

5914basin, and has no outfall to Lake Theresa. Although Lake

5924McGarity is referred to as the "Receiving Water Body" in the

5935Technical Staff Report dated September 26, 2005, the syst em

5945actually is land - locked.

59505/ ERP General Condition 8 requires the necessary easements to

5960be submitted to the District for approval.

59676/ Mr. Lott appears to be under the mistaken belief that

5978appeals from the final orders in those cases are pending. In

5989fact, according to the appellate court's online docket, the

5998appeal from Case Nos. 04 - 2399, etc., was dismissed on

6009October 11, 2005, and there is no record of any appeal being

6021taken from Case Nos. 05 - 3728, etc. ( Cf. www.5dca.org and

6033www.doah.state.fl. us ) Although a paper indicating an intent to

6043appeal to the Florida Land and Water Adjudicatory Commission

6052(FLWAC) was filed in the DOAH docket on January 20, 2006, the

6064paper does not appear to have been filed with FLWAC.

6074COPIES FURNISHED :

6077Kirby Green , Executive Director

6081St. John River Water Management

6086District

60874049 Reid Street

6090Palatka, Florida 32177

6093Phillip Lott

6095948 North Watt Circle

6099Deltona, Florida 32738 - 7919

6104George Jovato, Esquire

6107City of Deltona

61102345 Providence Boulevard

6113Deltona, Florida 32725

6116Kealey A. West, Esquire

6120St. Johns River Water Management

6125District

61264049 Reid Street

6129Palatka, Florida 32177 - 2529

6134Steven L. Spratt

61372492 Weatherford Drive

6140Deltona, Florida 32738

6143NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6149All parties have the right t o submit written exceptions within 15

6161days from the date of this Recommended Order. Any exceptions to

6172this Recommended Order should be filed with the agency that will

6183issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/26/2006
Proceedings: Final Order filed.
PDF:
Date: 05/10/2006
Proceedings: Agency Final Order
PDF:
Date: 03/17/2006
Proceedings: Recommended Order
PDF:
Date: 03/17/2006
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 03/17/2006
Proceedings: Recommended Order (hearing held January 24, 2006). CASE CLOSED.
PDF:
Date: 02/20/2006
Proceedings: Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 02/20/2006
Proceedings: Respondent, St. John River Water Management District`s Proposed Recommended Order filed.
PDF:
Date: 02/20/2006
Proceedings: Phillip Lott`s Proposed Final Order filed.
PDF:
Date: 02/16/2006
Proceedings: City of Deltona`s Proposed Recommended Order filed.
Date: 02/09/2006
Proceedings: Transcript of Hearing filed.
Date: 01/24/2006
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/20/2006
Proceedings: Order Vacating Order to Show Cause.
PDF:
Date: 01/19/2006
Proceedings: Order Granting Official Recognition.
PDF:
Date: 01/19/2006
Proceedings: Motion for Official Recognition (filed in Case No. 05-3664).
PDF:
Date: 01/18/2006
Proceedings: Joint Response To Order To Show Cause filed.
PDF:
Date: 01/18/2006
Proceedings: Phillip Lott`s Response to Request for Admissions from City of Deltona filed.
PDF:
Date: 01/18/2006
Proceedings: Phillip Lott`s Witness List filed.
PDF:
Date: 01/18/2006
Proceedings: Phillip Lott`s Notice of Service of his Answers to Respondent St. Johns River Water Management District`s First Set of Interrogatories filed.
PDF:
Date: 01/18/2006
Proceedings: Order on Motion to Shorten Response Time (motion is denied).
PDF:
Date: 01/18/2006
Proceedings: City of Deltona`s Response to Petitioner Interrogatories filed.
PDF:
Date: 01/13/2006
Proceedings: St. Johns River Water Management District`s Notice of Service of it`s Answers to Petitioner, Phillip Lott`s First Set of Interrogatories (filed in Case No. 05-3664).
PDF:
Date: 01/12/2006
Proceedings: City of Deltona`s Witness List filed.
PDF:
Date: 01/11/2006
Proceedings: St. Johns River Water Management District, Witness List (filed in Case No. 05-3664).
PDF:
Date: 01/10/2006
Proceedings: Order to Show Cause (parties are ordered to show cause in writing by January 19, 2006, why the final hearing should not be canceled, this case dismissed, and the file of the Division of Administative Hearings closed, without the necessity of any further proceedings).
PDF:
Date: 01/09/2006
Proceedings: City of Deltona`s Request for Admissions to Petitioner, Phillip Lott filed.
PDF:
Date: 01/09/2006
Proceedings: City of Deltona`s Request for Admissions to Petitioner, Steven Spratt filed.
PDF:
Date: 01/09/2006
Proceedings: Respondent, City of Deltona, Motion to Shorten Time to Respond filed.
PDF:
Date: 01/04/2006
Proceedings: Order on Motion to Compel.
PDF:
Date: 12/14/2005
Proceedings: Petitioner Phillip Lott`s Notice of First Set of Interrogatories to St. Johns River Water Management District and City of Deltona and Motion to Compel filed.
PDF:
Date: 12/14/2005
Proceedings: St. Johns River Water Management District`s Notice of Service of it`s First Set of Interrogatories to Petitioner, Phillip Lott filed.
PDF:
Date: 12/14/2005
Proceedings: St. Johns River Water Management District`s Notice of Service of it`s First Set of Interrogatories to Petitioner, Steven Spratt filed.
PDF:
Date: 11/10/2005
Proceedings: Order on Motion to Strike and for More Definate Statement (Motion to Strike is granted in part in that the allegations of past conduct of Deltona Corporation are stricken from the petitions; but, otherwise, the Motion to Strike and for More Definite Statement is denied).
PDF:
Date: 10/21/2005
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/21/2005
Proceedings: Notice of Hearing (hearing set for January 24 and 25, 2006; 9:00 a.m.; Deltona, FL).
PDF:
Date: 10/20/2005
Proceedings: Order Consolidating Cases (consolidated cases are: 05-3662 and 05-3664).
PDF:
Date: 10/20/2005
Proceedings: Motion to Strike and for More Definite Statement filed.
PDF:
Date: 10/20/2005
Proceedings: Motion to Consolidate (DOAH Case No. 05-3662 and 05-3664) filed.
PDF:
Date: 10/14/2005
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 10/14/2005
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 10/07/2005
Proceedings: Initial Order.
PDF:
Date: 10/06/2005
Proceedings: Notice of Transcription filed.
PDF:
Date: 10/06/2005
Proceedings: Individual Environmental Resource Permit Technical Staff Report filed.
PDF:
Date: 10/06/2005
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 10/06/2005
Proceedings: Notice of Referral filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
10/06/2005
Date Assignment:
10/07/2005
Last Docket Entry:
06/26/2006
Location:
Deltona, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (2):