10-002394 Palm City Civic Organization, Inc. vs. Martin County And South Florida Water Management District Status: Closed Recommended Order on Monday, November 15, 2010.

Summary: Historic prescriptive drainage rights to downstream flow-way is sufficient; no easement, etc., required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM CITY CIVIC ORGANIZATION, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 10 - 2394

)

MARTIN COUNTY AND SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

On September 8 , 2010 , a hearing was held in this case in

Stuart, Florida , before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608

For Respondent South Florida Water Management District :

Keith L. Wil liams, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC - 1410

West Palm Beach, Florida 33416 - 4680

For Respondent Martin County:

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

S TATEMENT OF THE ISSUE

The issue in this case is whether the South Florida Water

Management District (SFWMD) should issue Envir onmental Resource

Permit (ERP) 43 - 02326 - P to Martin County for construction and

operation of a retrofit surface water management system known as

the West Stormwater Treatment Area (STA) of the Old Palm City

Phase 3 STA in Martin County.

PRELIMINARY STATEMENT

SFWMD gave notice of its intention to issue ERP 43 - 02326 - P,

and Petitioner requested an administrative hearing to dispute

the issuance. During pre - hearing pro ceedings, the issues were

narrowed to: whether the County Ðhas sufficient financial,

legal and administrative capability to ensure that the activity

will be undertaken in accordance with the terms and conditions

of the permitÑ; whether the County Ðhas leg ally and physically

available operation and maintenance accessÑ; and whether flows

from the proposed West STA Ðwill be discharged into a ditch that

traverses property owned by Petitioner.Ñ See Joint Prehearing

Stipulation. At the final hearing, the issue s were narrowed

further to whether th e County must obtain ownership of, an

easement over , or written authorization to use PetitionerÓs

property for the ERP to issue .

At the final hearing, Martin County called : Greg Nolte,

its Project Manager for the Wes t STA; Gary Roderick, its

Environmental Project Manager; Donald Donaldso n , P.E., the

County Engineer; and Jeffrey Anton, P.E., an engineering

consultant for the West STA. SFWMD called Hugo Carter, P.E., a

SFWMD engineer who reviewed the project. Petition er called

Robert W. Higgins, P.E. , an engineering consultant. The County

re - called Mr. Roderick in rebuttal.

Martin County Exhibits C1 Î C4, C25, and C34 were received in

evidence. SFWMD Exhibits D25, D27 and D30a - c were received in

evidence. PetitionerÓs Exhibit P1 was received in evidence.

Ruling was reserved on objections to PetitionerÓs Exhibits P2 -

P4. Those o bjections are overruled, and the exhibits are

received in evidence. Petitioner also offered the unsigned and

uncertified transcrip ts of two deposition s ( Mr. Carter and

Mr. Waterhouse ); objections were sustained , and the transcripts

were proffered.

A T ranscript of the final hearing was filed on October 15,

2010 . At the request of the parties, their proposed recommended

orders were filed on November 4, 2010, and have been considered.

FINDINGS OF FACT

1. ERP 43 - 02326 - P is for part of a retrofit project to

treat surface water runoff in unincorporated Old Palm City in

Martin County before it flows into the South Fork of the St.

Lucie River. The project includes an East STA and a West STA.

ERP 43 - 02326 - P is for the West STA.

2. The proposed West STA consis ts of a detention area on

County - owned property located east of SW Cornell Avenue , north

of SW 36th Street, and south of SW 34th Terrace. The purpose of

the detention area is water quality treatment of the runoff by

allowing pollutants to settle out while the runoff is detained.

3. The West STA detention area is entirely within County -

owned property , with operation and maintenance access to public

roads via gently - sloped perimet er berms, at least 20 feet wide

beyond the detention areaÓs control elevation wa ter line , and

unimproved road right - of - way .

4. The detention area is in the same area where

approximately 2.75 acres of wetlands historically have received

surface water runoff. Historically, surface water has runoff

from that area in a northerly direction across the County - owned

right - of - way for SW 34 th Terrace, which is unimproved, and

through a wetland on the unimproved eastern half of PetitionerÓs

property (which is north of SW 34th Terrace , and east of SW

Cornell Avenue ) , through a County - maintained culvert under SW

34th Street (which is the northernmost extent of PetitionerÓs

property) , and through tidally - influenced wetlands and mangroves

on privately - owned lands to the north, until it reaches the

South Fork of the St. Lucie Riv er.

5. The detention area for the West STA is approximat ely

4.85 acres. The larger detention area (in comparison to the

historic wetlands in the area) is not for flood prevention but

to allow for longer detention and better water quality

treatment.

6. The West STA project includes the replacement of an

old, rusted culvert under SW Cornell Avenue with two new

elliptical culverts having a greater conveyance capacity for

surface water flowing in a County - maintained ditch between the

culvert and the southwe st corner of the detention area.

However, the increased capacity is not designed to increase the

quantity or flow of water into the ditch leading to the

detention area.

7. Near the northeastern corner of the proposed detention

area , in approximately the sa me location from which surface

water runoff has flowed from the historic wetlands, a Ðbubble -

riserÑ outfa ll is proposed. A bubble - riser is the most benign

form of outfall for a surface detention system , having little to

no horizontal velocity. It essenti ally allows water to bubble

up from lower elevations to the ground surface.

8. As designed, the West STA will improve water quality

and not change water quantity exiting the detention area through

the bubble - riser.

9. It is PetitionerÓs position that its wetland

necessarily is part of the West STA since surface water flows

through the wetlands between the SW 3 4 th Terrace right - of - way

and the culvert under SW 3 4 th Street . Put another away,

Petitioner takes the position that operation of the system

requires the CountyÓs ability to enter onto PetitionerÓs

property to maintain flows between the SW 3 4 th Terrace right - of -

way and the culvert under SW 3 4 th Street.

10. The evidence was that the wetlands on PetitionerÓs

property h ave functioned to convey surface water runoff for over

thirty years. Potential naturally - occurring obstructions, such

as vegetative debris and fallen limbs and trees, can be flushed

naturally by higher flows. The evidence was that, if any such

obstructio ns have occurred in the last thirty years, they have

been flushed at least as far as the County - maintained culvert

under SW 36th Street. The evidence was that, except for the

CountyÓs maintenance of the culvert under SW 36th Street,

neither Petitioner, th e County, nor anyone else has maintained

flow through the wetlands on PetitionerÓs property for the past

30 years. This evidence suggests that no maintenance of the

PetitionerÓs wetlands will be required in the future.

11. Petitioner cannot alter the wetla nds on its property

in a manner that would obstruct the flow of surface water runoff

between the West STA and the County - maintained culvert. The

CountyÓs comprehensive plan and land development regulations

allow Ðno impact to wetlands.Ñ

12. With or witho ut the West STA, the County can declare

an emergency i n the event of a natural disaster causing an

obstruction of flow through PetitionerÓs wetlands and enter onto

PetitionerÓs property to clear the obstruction to prevent

flooding of PetitionerÓs property or ÐupstreamÑ properties under

its police powers to protect the health, safety, and welfare of

the public. If the County has to take such action and damages

PetitionerÓs property in the process, it would be obliged to

restore the property to its previous condition. The County has

the financial ability to meet that obligation if it were to

arise.

13. With or wit hout the West STA, the County could

exercise the power of eminent domain to obtain a property

interest in PetitionerÓs wetlands i f it ever beca me necessary .

14. It could be helpful for the County to have ownership

of, an easement over, or written authorizat ion to use

PetitionerÓs property . Such rights would eliminate the

potential need to resort to emin ent domain and police powers.

They are not necessary for reasonable assurance in this case .

15. Petitioner attempted to prove that the County

previously admi tted to the requirement for the County to obtain

ownership of, an easement over, or written authorization to use

PetitionerÓs property by asking for drainage easements in 1977

that were said to be needed for periodic cleaning of excessive

vegetation growth and debris and to allow unimpeded flow of

water to p revent flooding of surrounding lowlands following

heavy rain. The drainage easements were not provided, and the

wetlands have not had to be maintained since 1977. There is no

reason to believe that mai ntenance will be required as a result

of the West STA project.

16. Petitioner attempted to prove that both the County and

SFWMD previously admitted to the requirement for the County to

obtain ownership of, an easement over, or written authorization

to use P etitionerÓs property. The evidence was that the

CountyÓs engineering consultants considered not having rights of

ingress and egress to present problems for ditch maintenance.

These comments related to a n earlier proposal that would have

extended the detention area across the SW 34th Terrace right - of -

way and into PetitionerÓs wetlands . P etitioner opposed that

proposal, and t he County modified its project to confine the

detention area to the CountyÓs property and just use

prescr iptive rights to the historic drainage through

PetitionerÓs wetlands. This eliminated the maintenance access

issues previously raised by the CountyÓs engineering

consultants , leaving only the issue raised by Petitioner in this

case as to whether the pres criptive drainage rights are

sufficient .

17. Petitioner attempted to prove that SFWMDÓs

acknowledgement of the CountyÓs power of eminent domain ,

together with its requirement that some private owners applying

for ERPs for surface water management system s o btain ownership

of, an easement over, or written authorization to use a

downstream flow - way, amounted to an unpromulgated rule to treat

the County different ly . Specifically, Petitioner pointed to

SFWMDÓs requests for additional information as to the assurances

contained in an ERP application for a private proposal known as

the Heritage Preserve in Indiantown . While there may be some

basic similarities between the two projects, there appear to be

m any differences besides the identity of the applicant . (The

evidence did not include much detail regarding the Heritage

Preserve project ). These other differences could explain why

ownership of, an easement over, or written authorization to use

a downstr eam flow - way might be required for the Heritage

Preserve but not for the CountyÓs West STA project .

18. SFWMD does not ignore the reality of the eminent

domain and police powers of a governmental applicant. In some

cases, the exercise of those powers could be necessary to

provide reasonable assurance and meet all permitting criteria.

In those cases, an ERP should be conditioned upon the

governmental applicantÓs commitment to exe rcise those rights as

necessary. In this case, where the governmental applican t only

requires the use of historic, prescriptive drainage rights, and

no need for future maintenance is anticipated, a commitment to

exercise those powers is not necessary to provide reasonable

assurance and meet permitting criteria.

CONCLUSIONS OF LAW

19. As applicant, Martin County has the burden to prove

entitlement to ERP 43 - 02326 - P . Fla. Dep't of Transp. v. J.W.C.

Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

20. The ERP criteria applicable in this case are found in :

Part IV of Chapter 373, Flor ida Statutes; Florida Administrative

Code Chapter 40E - 4 ; and SFWMD's Basis of Review for ERPs ( BOR ) .

Only the criteria in dispute are addressed here.

21. Rule 40E - 4.301(1) provides, in pertinent part, that

"an applicant must provide reasonable assurance" t hat its

project: Ð(j ) Will be conducted by an entity with the

sufficient financial, legal and administrative capability to

ensure that the activity will be undertaken in accordance with

the terms and conditions of the permit, if issued . . . .Ñ

Martin County meets this criterion.

22. BOR Section 7.5 requires minimum perimeter maintenance

and operation easements beyond the control elevation water line

and connected to a public road or other legally and physically

available access point. This requ irement applies to the

detention area, not PetitionerÓs wetlands, and is met in this

case.

23. Martin County meets the criteria for issuance of ERP

43 - 02326 - P .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RE COMMENDED that SFWMD enter a final order issuing ERP 43 -

02326 - P .

DONE AND ENTERED this 15th day of November, 2010, 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

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of November, 20 10.

COPIES FURNISHED :

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

Keith L. Williams, Esquire

South Florida Water Management District

3301 Gun Club Road MSC - 1410

West Palm Beach, Florida 33416 - 4680

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road MSC - 1410

West Palm Beach, Florida 33 416 - 4680

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the f inal order in this case.