12-001056 Charles And Kimberly Jacobs And Solar Sportsystems, Inc. vs. Far Niente Ii, Llc, Polo Field One, Llc, And South Florida Water Management District Status: Closed Recommended Order on Friday, April 26, 2013.

Summary: Applicants provided reasonable assurances that the stormwater management system will comply with the established standards, thus the permit should be issued.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES AND KIMBERLY JACOBS AND )

SOLAR SPORTSYSTEMS, INC. , )

)

Petitioners , )

)

vs. ) Case No. 12 - 1056

)

FAR NIENTE II, LLC, POLO FIELD )

ONE, LLC, AND SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT , )

)

Respondents . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearin g was held in this case

on J anuary 8 through 10, 201 3 , in West Palm Beach, Florida,

before E. Gary Early, a designated Administrative Law Judge of

the Division of Administrative Hearings .

APPEARANCES

For Petitioners: Jeffrey S. Bass, Esquire

Amy E. Huber, Esquire

Shubin & Bass, P.A.

46 Southwest 1 st Street , 3rd Floor

Miami, Florida 33130

For Respondent South Florid a Water Management District:

Susan Roeder Martin, Esquire

South Florida Water Management District

3301 Gun Club Road , Mail Stop 1410

West Palm Beach, Florida 33406

For Respondents Far Niente Stables II, LLC and Polo Field

One, LLC :

John J. Fumero, Esquire

Thomas F. Mullin, Esq uire

Sundstrom, Friedman, & Fumero, LLP

Suite 2020

950 Peninsula Corporate Circle

Boca Raton, Florida 33487

STATEMENT OF THE ISSUE

The issue to be determined is whether the applica nts, Far

Niente Stables II, LLC; Polo Field One, LLC ; Stadium North, LLC ;

and Stadium South, LLC, are entitled to issuance of a permit by

the South Florida Water Mana gement District (SFWMD or District)

fo r the modification of a surface - water mana gement system to

serve the 24.1 - acre World Dressage Complex in Wellington,

Florida .

PRELIMINARY STATEMENT

On November 22, 2011, the District issued an environmental

resource permit, No. 50 - 00548 - S - 203 ( Permit) to Respondent , Far

Niente Stables II, LLC . The P ermit authorized the construction

of a surface - water management system designed to serve the 20 -

acre World Dressage Complex (Complex) in Wellington, Florida.

The Permit was corrected on January 13, 2012 , to add Respondent,

Polo Field One, LLC , as a permit te e.

On January 27, 2012, Petitioners timely filed their

Petition for Administrative Hearing . The Di strict dismissed the

Petition with leave to amend. Petitioners filed an Amended

Petition for Formal Administrative Hearing on March 5, 2012.

That Amended Petition was referred to the Division of

Administrative Hearings on March 20, 2012 .

On March 26, 2012, the District issued a proposed

modification to Permit No. 50 - 00548 - S - 203 that added Stadium

North, LLC and Stadium South , LLC as permittees. For purposes

of this proceeding, the Respondents, Far Niente Stables II, LLC,

and Polo Field One, LLC, along with Stadium North, LLC, and

Stadium South, LLC , shall be collectively referred to as the

ÐApplicants,Ñ and shall be identifi ed individually only as

necessary.

A bifurcated hearing on PetitionersÓ standing and the

timeliness of the petition was scheduled for May 16, 2012, with

the final hearing, if necessary, scheduled for September 25 Î 27,

2012. The standing and timeliness hearing was subsequently re -

scheduled for June 11 - 12, 2012, and was held as scheduled.

An Order on Standing and Timeliness was entered on June 29,

2012, in which the undersigned concluded that Petitioners,

Charles and Kimberly Jacobs, had demonstrated their standing to

bring this proceeding, that Petitioner, Solar Sportsystems,

I nc., had not demonstrated its standing and should therefore be

dismissed as a party, and that the Petition for Administrative

Hearing had been timely filed. The Order on Standing and

Timeliness is hereby adopted and incorporated in this

Recommended Order as though restated in its entirety.

At the bifurcated hearing on standing and on the timeliness

of the petition, a number of exhibits were received in evidence,

and are identified in the Order on Standing and Timeliness. For

purposes of the record of this proceeding, each of those

exhibits has been identified with an ÐSÑ (for Standing), e.g.

Joint E xhibit JEx1 - S, PetitionersÓ E xhibit PEx9 - S, etc.

On August 22, 2012, the final hearing was continued at

PetitionersÓ request, and rescheduled for November 6 - 8, 2012.

The final hearing was again continued with the concurrence of

the parties, and rescheduled for January 8 Î 10, 2013.

Prior to the final hear ing, a number of motions were filed

and disposed of by separately issued Orders. Those motions, and

their disposition, may be determined by reference to the docket

in this case.

On January 7, 2013, the District issued a final proposed

modification of Pe rmit that incorporated all of the changes made

to the P ermit since its initial issuance , including proposed

changes made in December 2012, and made other conforming and

informational changes. That final revision forms the basis for

this proceeding.

On January 7, 2013, Respondents filed a Motion in Limine,

Motion to Strike, and Renewed Motion to Dismiss. On January 8,

2013, Petitioners file d a Response in Opposition to the three

motions. At the final hearing, the undersigned took up each of

the motions. The Renewed Motion to Dismiss was denied based on

the conclusions regarding standing in the Order on Standing and

Timeliness. The Motion i n Limine and Motion to Strike were

denied, with the admissibility of exhibits to be determined on a

case - by - case basis as they were offered in evidence. Evidence

of past violations of District rules or permits by one or more

of the Applicants , or by entit ies affiliated with the

Applicants, was determined to be admissible as evidence of

whether reasonable assurances were provided that District

permitting standards will be met, pursuant to Florida

Administrative Code Rule 40E - 4.302(2).

The final hearing was held on January 8 - 10, 2013. At the

final hearing, Respondents met their prima faci e burden of

demonstrating entitlement to issuance of the Permit pursuant to

s ection 120.569(6), Florida Statutes, by submitting Joint

(Respondents) Exhibits 1 through 4, an d 5 (a) - (t) , which were

received in evidence .

In reply to RespondentsÓ prima facie case, Petitioner s

called as witnesses John R. Hall, a professional engineer , who

was tendered and accepted as an expert in issues pertaining to

water quantity ; and Edward A. Swakon, who was tendered and

accepted as an expert in issues pertaining to water quality and

permit administration . Petitioners Ó Exhibits 2, 8, 10, 12 - 23,

26, 28 , 30 - 3 6, 42, 43, 53, 55, 62, 76, 77, 79, and 82 - 94 were

received in evidence. In addition, the following subparts of

Exhibit 29 were received in evidence -- 29 - 6, 29 - 8, 29 - 11, 29 -

14, 29 - 17, 29 - 19, 29 - 22, 29 - 24, 29 - 28, 29 - 30, 29 - 31, 29 - 45, 29 -

46, 29 - 52, 29 - 53, 29 - 55, and 29 - 59. Petitioners Ó Exhibit 53

consists of the deposition t ranscript of Mark Bellissimo , the

party representative for the Applicants. Petitioners Ó Exhibits

55 and 62 consist of the deposition transcript s of Anthony

Waterhouse, the party representative for the District.

In their rebuttal, t he Applicants called as witnesses

M ichael Stone, who was accepted as an expert in equestrian

operations and facilities ; and Michael Sexton, who was accepted

as an expert in surface water management engineering, project

engineering design for equestrian facili ties, and surveying and

mapping . Applicants Ó Exhibits 1 and 3 - 17 we re received in

evidence. Applicants Ó Exhibits 11 - 13 consist of the deposition

transcripts of Edward Swakon, PetitionersÓ expert witness.

Applicants Ó Exhibits 14 and 15 consist of the deposition

T ranscripts of John Hall, PetitionersÓ expert witness.

Applicants Ó Exhibits 16 and 17 consist of the deposition

T ranscripts of Charles Jacobs and Kimberly Jacobs, respectively,

parties to this proceeding .

The District called as its witness , Anthony Wate rhouse, the

DistrictÓs assistant director of the regulation division, who

was accepted as an expert in water - resource engineering,

environmental resource permitting, water quality permitting, and

water quantity permitting . District Exhibit 1 was received in

evidence . District Exhibit 2 was proffered but, having not been

listed in the Joint Prehearing Stipulation, was not received in

evidence.

The six - volume Transcript was filed on February 5 , 2013 .

After having requested and received two extensions of time for

filing post - hearing submittals, t he parties filed Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order .

FINDINGS OF FACT

The Parties

1. Petitioners Cha rles Jacobs and Kimberly Jacobs are the

owners of a residence at 2730 Polo Island Drive, Unit A - 104,

Wellington, Florida. The residence is used by the Jacobs on an

annual basis, generally between October and Easter, which

corresponds to the equestrian show season in Florida.

Petitione rs maintain their permanent address in Massachusetts.

2. The District is a public corporation, exis ting by

virtue of c hapter 25270, Laws of Florida 1949. The District is

responsible for administering c hapter 373, Florida Statutes, and

t itle 40E, Florida Administrative Code, within its geographic

boundaries. The DistrictÓs statutory duties include the

regulation and management of water resources, including water

quality and water supply, and the issuance of environmental

resource permits.

3 . The Appli cants, Far Niente Stabl es II, LLC; Polo Field

One , LLC; Stadium North, LLC ; and Stadium South, LLC, are

Florida limited - liability companies with business operations in

Wellington, Florida. The Applicants are the owners of four

parcels of property , parts of which comprise the co mplete 24.1 -

acre proposed Comp lex, and upon which the surface - water

management facilities that are the subject of the Permit are to

be constructed. C ontiguous holdings of the four Applicants in

the area consist of approxima tely 35 additional acres, primarily

to the north and west of the Complex.

Acme Improvement District

4 . T he Acme Improvement District was created in the 1950s

as a special drainage district. At the time of its creation,

the Acme Improvement District enc ompassed 18,200 acres of land .

As a result of additions over the years, t he Acme Improvement

District currently consists of approximately 20,000 acres of

land that constitutes the V illage of Wellington , and includes

the Complex property.

5 . On March 16, 1978, the District issued a Surface Water

Management Permit, No. 50 - 00548 - S, for the Acme Improvement

District (1978 Acme Permit) that authorized the construc tion and

operation of a surface - water management system, and established

design gu idelines for subsequent work as development occurred in

the Acme Improvement District.

6 . The total area covered by the 1978 Acme Permit was

divided into basins, with the dividing line being, generally,

Pierson Road. Basin A was designed so that its interconnected

canals and drainage features would discharge to the north into

the C - 51 Canal , while Basin B was designed so that its

interconnected canals and drainage features would discharge to

the south into the C - 40 Borrow Canal.

7 . Water managemen t activities taking place within the

boundaries of the Acme Improvement District are done through

modifications to the 1978 Acme Permit. Over the years, there

have been literally hundreds of modifications to that permit.

The Property

8 . The Complex pro perty is in Basin A of the Acme

Improvement District, as is the propert y owned by Petitioners.

9 . Prior to January 1978 , the property that is proposed

for the Complex consisted of farm fields.

10 . At some time between January, 1978 and December 18,

1 979 , a very narrow body of water was dredged from abandoned

farm fields to create what has been referred to in the course of

this proceeding as Ð Moose Lake . Ñ During that same period, Polo

Island was created, and property to the east and west of Polo

Island was filled and graded to create polo fields . Polo Island

is surrounded by Moose Lake.

11 . When it was created , Polo Island was filled to a

higher elevation than the adjacent polo fields to give the

residents a view of the polo matches. Petition ersÓ residence

has a finished floor elevation of 18.3 8 feet NGVD, which is more

than three - quart ers of a foot above the 100 - year flood elevation

of 17.5 feet NGVD established f or Basin A.

12 . T he Complex and PetitionerÓs residence both front on

Moose Lake. There are no physical barriers that separate that

part of the Moose Lake fronting PetitionersÓ residence from that

p art of Moose Lake i nto which the ComplexÓs surface - water

management system is designed to discharge.

13 . Moose Lake discharges into canals that are part of the

C - 51 Basin drainage system . Discharges occur through an o utfall

at the south end of Moose Lake that direct s water into the C - 23

canal, and through an outfall at the east end of Moose Lake that

direct s water into the C - 6 canal.

14 . There are no wetlands or surface water bodies located

on the Complex property.

2005 - 2007 Basin Study and 2007 Acme Permit

15 . Material changes in the Acme Drainage District since

1978 affected the assumptions upon which the 1978 ACME Permit

was issued. The material changes that occurred over the years

formed the rationale for a series of detailed basin studies

performed from 2005 through 2007.

16 . The basin studies, undertaken by the District and the

Village of Wellington, analyzed and modeled the areas

encompassed by the 1978 Acme Permit in light of existing

improvements within the Acme Improvement District. The changes

to Basin A and Basin B land uses identified by the basin studies

became the new baseline conditions upon which the District and

the Village of Wellington established criteria for developing

and redeveloping property in the Wellington area , and resulted

in the development of updated information and assumptions to be

used in the ERP program.

17 . On November 15, 2007, as a result of the basin

studies, the District accepted the new criteria and issued a

modification of the standards established by the 1978 A cme

Permit (2007 Acme Permit). F or purposes relevant to this

proceeding, the 2007 Acme Permit approved the implementation of

the new Permit Criteria and Best Management Practices Manual for

Works in the Village of Wellington . 1 /

18 . The language of t he 2007 Acme Permit is somewhat

ambiguous, and portions could be read in isolation to apply only

to land in Basin B of the Acme Improvement District .

Mr. Waterhouse te stified that the language of the permit tended

to focus on Basin B because it contained significant tracts of

undeveloped propert y , the land in Basin A having been

essentially built - out. However, he stated that it was the

DistrictÓs intent that the Permit Criteria and Best Management

Practices Manual for Works in the Village of Wellington ad opted

by the 2007 Acme Permit was to apply to all development and

redevelopment in the Acme Improvement District, and that the

District had applied the permit in that manner since its

issuance. Mr. WaterhouseÓs testimony was credible, reflects the

Distric tÓs intent and application of the permit, and is

accepted.

The Proposed Complex

19 . The Complex is proposed for construction on the two

polo fields to the west of Polo Island, and properties

immediately adjacent and contiguous thereto. 2 /

20 . The Compl ex is designed to consist of a large covered

arena; several open - air equestrian arenas; four 96 - stall

stables, with associated covered manure bins and covered horse

washing facilities , located between the stables; an event tent;

a raised concrete vendor de ck for spectators, exhibitors , and

vendors that encircles three or four of the rings; and various

paved access roads , parking areas , and support structures . Of

the 96 stalls per stable, twenty percent would reasonably be

used for storing tack, feed, and s imilar items.

21 . The surface - water management system that is the

subject of the application consists of inlets and catch basins,

underground drainage structures, dry detention areas , swales for

conveying overland flows, and exfiltration trenches for

treatment of water prior to its discharge at three outfall

p oints to Moose Lake. The horse - washing facilities are designed

to tie into the Village of WellingtonÓs sanitary sewer system,

by - passing the surface water management system.

The Permit Applicat ion

22 . On May 18, 2011, two of the Applicants, Far Niente

Stables II, LLC, and Polo Field One, LLC, applied for a

modification to the 1978 Acme Improvement District permit to

construct a surface - water management system to serve the

proposed Complex. At the time of the initial application, the

proposed Complex encompassed 20 acres. There were no permitted

surface water management facilities within its boundaries.

23 . The Complex application included, along with

structural elements , the implementation of Best Management

Practices (BMPs) for handling manure, horse - wash water, and

other equestrian waste on the property.

24 . P roperties adjacent to the Complex, and under common

ownership of one or more of the Applicants, have been routinely

used for equestrian events, including temporary support

activities for events on the Complex property. For example,

properties to the north of the Complex owned by Far Niente

Stables II, LLC , and Polo Field One, LLC, have been used for

show - jum ping events, derby events, and grand prix competitions,

as well as parking and warm - up areas for d erby events and for

dressage events at the Complex. Except for an earthen mound

associated with the derby and grand prix field north of the

C omplex, there ha s been no development on those adjacent

properties, and no requirement for a stormwater management

system to serve those properties. Thus, th e adjacent properties

are not encompassed by the Application.

Permit Issuance

25 . On November 22, 2011, Per mit No. 50 - 00548 - S - 203 was

issued by the District to Far Niente Stables II, LLC. Polo

Field One, LLC, though an applicant, was not identified as a

permittee.

26 . On January 13, 2012, the District issued a ÐCorrection

to Permit No. 50 - 00548 - S - 203.Ñ The only change to the P ermit

issued on November 22, 2011 , w as the addition of Polo Field One,

LLC , as a permittee.

27 . On January 25, 2012, the Applicants submitted a

request for a letter modification of the Permit to authorize

construction of a 1,190 - linear foot landscape berm along the

eastern property boundary. On February 16, 2012, the District

acknowledged the application for the berm modification, and

requested additional information regarding an access road and

cul - de - sac on the west side of the Complex that extended into

property owned by others. On that same date, the Applicants

provided additional information, including evidence of

ownership, that added Stadium North, LLC and Stadium South, LLC,

as permittees. On March 26, 2012, the Di strict issued the

proposed modification to Permit No. 50 - 00548 - S - 203.

28 . On November 15, 2012, the ApplicantsÓ engineer

prepared a revised set of plans that added 2.85 acres of

property to the Complex. The property, referred to as Basin 5,

provided an additional dry detenti on stormwater storage area.

On or shortly after December 3, 2012, the Applicant s submitted a

final Addendum to Surface Water Management Calculations that

accounted for the addition of Basin 5 and other changes to the

Permit applicati on that increased the size of the Complex from

20 acres to 24.1 acres.

29 . On December 18, 2012, the Applicants submitted final

revisions to the BMPs in an Updated BMP Plan .

30 . On January 7, 2013, the District issued the final

proposed modification to the permit. The modification consisted

of the addition of Basin 5, the deletion of a provision of

s pecial condition 14 that conflicted with elements of the staff

report , the Updated BMP Plan, the recognition of an enforcemen t

proceeding for unauthorized construction of the linear berm and

other unauthorized works, and changes to the Permit to conform

with additional information submitted by the Applicants .

31 . The final permitted surface - water management system

consists of inlets and catch basins, undergro und drainage

structures, a 0.64 - acre dry detention area, swales for co nveying

overland flows, and 959 - linear feet of exfiltration trench.

32 . For purposes of this proceeding, the ÐPermitÑ that

constitutes the proposed ag ency action consists of the initial

November 22, 2011 , P ermit; the January 13, 2012 , Correction; the

Mar ch 26, 2012 , letter modification; and the January 7, 2013

modification.

Post - Permit Activities at the Complex

33 . Work began on the Complex on or about November 28,

2011. Work continued until stopped on April 18, 2012 , pursuant

to a Dist r ict issued Consent Order and Cease and D esist. As of

the date of the final hearing, the majority of the work had been

completed .

34 . In late August , 2012 , the Wellington area was affected

by rain s associated with Tropical Storm Isaac that exceeded the

rainfall totals of a 100 - year storm event . Water ponded in

places in the Polo Island subdivision. That ponded water was

the r esult of water falling directly on Polo Island, and may

have been exacerbated by blockages of Polo Island drainage

structures designed to discharge water from Polo Island to Moose

Lake. No residences were flooded as a result of the Tropical

Storm Isaac rain event. The only flooding issue related to

water elevations in Moose Lake was water overflowing the

entrance road, which is at a lower elevation. The road remained

passable. Road flooding is generally contemplated in the design

of stormwater manage ment system s and does not suggest a failure

of the applicable system.

Permitting Standards

35 . S tandards applicable to the Permit are contained in

Fl o rida Administrative Code Rule 40E - 4.301 (1)(a) - (k) , and in the

DistrictÓs Basis of Review for Environment al Resource Permit

Applications (BOR), which has been adopted by reference in r ule

40E - 4.091(1)(a). The parties stipulated that the standards in

r ules 40E - 4.301(1)(d),(g) and (h) are not at issue in this

proceeding.

Permitting Standards - Water Quantity

36 . T hose provisions of r ule 40E - 4.301 that remain at

issue in this proceeding, and that pertain to water quantity,

are as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter . . . a n applicant must

provide reasonable assurance that the

construction, alteration, operation,

maintenance, removal or abandonment of a

surface water management system:

(a) Will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) Will not cause adverse flooding to on -

site or off - site property;

(c) Will not cause adverse impacts to

existing surface water storage and

conveyance capabilities.

37 . In addition to the preceding rules, s ection 6.6 of the

BOR, entitled ÐFlood Plain Encroachment,Ñ provides that Ð[n]o

net encroachment into the floodplain, between the average wet

season water table and that encompassed by the 100 - year event,

which will adversely affect the existing rights of others, will

be allowed.Ñ Section 6.7 of the BOR, entitled Ð Historic Basin

Storage,Ñ provides that Ð[p]rovision must be made to replace or

otherwise mitigate the loss of historic basin storage provided

by the project site.Ñ

38 . The purpose of a pre - deve lopment versus post -

development analysis is to ensure that, a fter development of a

parcel of property, the property is capable of hold ing a volume

of stormwater on - site that is the same or greater than that held

in its pre - development condition. On - site storage includes

surface storage and soil storage.

Surface Storage

39 . Surface storage is calculated by determining the

quantity of water stored on the surface of the site.

40 . Mr. Hall found no material errors in the ApplicantsÓ

calculations re garding surface storage. His concern was that

the permitted surface storage, including the dry detention area

added to the plans in December 2012, would not provide

compensating water storage to account for the deficiencies he

found in the soil storage ca lculations discussed herein.

41 . Based on the foregoing, the ApplicantsÓ surface

storage calculations are found to accurately assess the volume

of stormwater that can be stored on the property without

discharge to Moose Lake.

Soil Storage

42 . Soil storage is water that is held between soil

particles . Soil storage calculations take into consideration

the soil type(s) and site - specific soil characteristics,

including compaction.

43 . Soils on the Complex property consist of depressional

soils. Such soils are less capable of storage tha n are sandier

coastal soils. When compacted, the storage capacity of

depressional soils is further reduced.

44 . The ApplicantsÓ calculations indicated post -

development storage on the Complex property to be 25. 04

acre/feet. Mr. HallÓs post - development storage calculation of

25.03 acre/feet was substantively identical. 3/ Thus, the

evidence demonstrates the accuracy of ApplicantsÓ post -

development stormwater storage calculations.

45 . The ApplicantsÓ calculati ons showed pre - development

combined surface and soil storage capacity on the Property of

24.84 acre/feet. Mr. Hall calculated pre - development combined

surface and soil storage, based upon presumed property

conditions existing on March 16 , 1978, of 35.12 acre/feet .

46 . Based on the foregoing, Mr. Hall concluded that the

post - development storage capacity of the Complex had a deficit

of 10.09 acre/feet of water as compared to the pre - development

storage capacity of the Property , which he attributed to a

deficiency in soil storage .

47 . T he gist of Mr. HallÓs disagreement centered on the

ApplicantsÓ failure to consider the ComplexÓs pre - development

condition as being farm fields, as they were at the time of

issuance of the 1978 Acme Permit, and on the ApplicantsÓ

application of the 25 - percent compaction rate for soils on the

former polo fields.

48 . As applied to this case, the pre - development condition

of the Complex as polo fields was a reasonable assumption for

calculating soil storage, rather than the farm fields that

existed in January 1978, and is consistent with the existing

land uses identified in the 2005 - 2007 basin studies and 2007

Acme Permit .

49 . Given th e use of the Complex property as polo fields,

with the attendant filling, grading, rolling, mowing, horse

traffic, parking, and other activities that occurred on the

property over the years, the conclusion that the soils on the

polo fields were compacted, and the application of the 25 -

percent compaction rate , was a reasonable assumpti on for

calculating soil storage .

50 . Applying the ApplicantsÓ assumptions regarding

existing land uses for the Complex property, t he greater weight

of the evidence demonstrat es that the proposed surface water

management system will provide a total of 25.04 - acre feet of

combined soil and surface storage compared to pre - development

soil and surface storage of 24.84 - acre feet. Thus, the proposed

Project will result in an increas e of soil and surface storage

over pre - development conditions , and will not cause or

contribute to flooding or other issues related to water

quantity. 4 /

51 . Based on the foregoing, the Applicants have provided

reasonable assur ances that the proposed surface - water management

system will meet standards regarding water quantity established

in ru le 40E - 4.301(1)(a), (b), and (c), and s ections 6.6 and 6.7

of the BOR.

Permitting Standards - Water Quality

52 . T hose provisions of r ule 40E - 4.301 that remain at

issue in this proceeding, and that pertain to water qua lity , are

as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter . . . an applicant must

provide reasonable assurance that the

construct ion, alteration, operation,

maintenance, removal or abandonment of a

surface water management system:

* * *

(e) Will not adversely affect the quality

of receiving waters such that the water

quality standards . . . will be violated;

(f) Will not cause adverse secondary

impacts to the water resources.

53 . Section 373.4142, entitled Ð [w] ater quality within

stormwater treatment systems,Ñ provides, in pertinent part,

that:

State surface water quality standards

applicable to waters of the state . . .

shal l not apply within a stormwater

management system which is designed,

constructed, operated, and maintained for

stormwater treatment . . . . Such

inapplicability of state water quality

standards shall be limited to that part of

the stormwater management sy stem located

upstream of a manmade water control

structure permitted, or approved under a

noticed exemption, to retain or detain

stormwater runoff in order to provide

treatment of the stormwater . . . .

54 . Moose Lake is a component of a stormwater - management

system that is located upstream of a manmade water control

structure.

55 . The Permit application did not include a water quality

monitoring plan, nor did the Permit require the Applicants to

report on the water quality of Moose Lake.

56 . Du ring October and November, 2012, Petitioner s

performed water quality sampling in Moose Lake in accordance

with procedures that were sufficient to demonstrate the accuracy

of the results. The sampling showed phosphorus levels in Moose

Lake of greater than 50 parts per billion (ppb). 5 / Th at figure ,

though not a numeric standard applicable t o surface waters, was

determined to be significant by Petitioners because phosphorus

may not exceed 50 ppb at the point at which the C - 51 Canal

discharges from the Acme I mprovement District into the

Everglades system.

57 . Notwithstanding the levels of phosphorus in Moose

Lake, Mr. Swakon admitted that Ðthe calculations that are in the

application for water quality treatment are, in fact, met.

TheyÓve satisfied the cri teria that are in the book.Ñ I n

response to the question of whether Ð[t]he water quality

requirements in the Basis of Review . . . the half inch or one

inch of runoff, the dry versus wet detention . . . complied with

t hose water quality requirements , Ñ he further testified Ð[i] t

did.Ñ

58 . Mr. Swakon expressed his belief that , despite

ApplicantsÓ compliance with the standards established for water

quality treatment, a stricter standard should apply because the

pollutant - loading potential of the Complex , particularly

phosphorus and nitrogen from animal waste, is significantly

different tha n a standard project, e.g., a parking lot. N o

authority for requiring such additional non - rule standards was

provided.

59 . The evidence demonstrates that the Applicant s provided

reasonable assurances that all applicable stormwater management

system standards that pertain to water treatment and water

quality were met.

Permitting Standards - Design Features and BMPs

60 . Provisions of r ule 40E - 4.301 that remain at issue in

this proceeding, and that constitute more general concerns

regarding the design of the Complex, are as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter . . . an applicant must

provide reasonable assurance that the

construction, alteration, operation,

maintenance, removal or abandonment of a

surface water management system:

* * *

(i) Will be capable, based on generally

accepted engineering and scientific

principles, of being performed and of

functioning as proposed .

61 . Petitioners alleged that certain deficiencies in the

Complex design and BMPs compromise the ability of the stormwater

management system to be operated and function as proposed.

Design Features

62 . Petitioners expr essed concern that the manure bin,

though roofed, had walls that did not extend to the roofline,

thus allowing rain to enter . Photographs received in evidence

suggest that the walls extend to a height of approximately six

feet, with an opening of approximately two feet to the roof

line. The plan detail sheet shows a roof overhang , though it

was not scaled. Regardless , t he slab is graded to the center so

that it will collect any water that does enter through the

openings. Based on the foregoing, the Applicants have provided

reasonable assurances that the manure bins are sufficient to

prevent uncontrolled releases of animal waste to the stormwater

management system or Moose Lake.

63 . Petitioners suggested that the horse - washing

facilities , which discharge to a sanitary sewer system rather

than to the stormwater management facility, are inadequate for

the number of horses expect ed to use the wash facilities.

Petitioners opined that the inadequacy of the wash facilities

would lead to washing being done outside of the facilities, and

to the resulting waste and wash water entering the stormwater

management system . Petitioners prov ided no basis for the

supposition other than speculation . Mr. Stone testified that

the horse - washing facilities are adequate to handle the horses

boarded at the stables and those horses that would reasonably be

expected to use the facility during events. His testimony in

that regard was credible and is accepted. Based on the

foregoing, the Applicants have provided reaso nable assurances

that the horse - washing facilit ies are adequate to prevent the

release of wash water to the stormwater management system or

Moose Lake.

64 . Petitioners expressed further concerns that hor se

washing outside of the horse - washing facilit ies would be

facilitated due to the location of hose bibs along the exterior

stable walls. However, Mr. Swakon testified that those concerns

would be minimized if the hose bibs could be disabled to prevent

the attachment of hoses. The December 2012 Updated BMP Plan

requires such disabling, and Mr. Sto ne testified that the

threads have been removed. Based on the foregoing, the

Applicants have provided reasonable assurances that the presence

of hose bibs on the exterior stable walls will not result in

conditions that would allow for the release of wash water to the

stormwater management system or Moose Lake.

Best Management Practices

65 . The Updated BMP Plan for the Complex includes

practices that are more advanced than the minimum requirements

of the Village of Wellington, and more stringent than BM Ps

approved for other equestrian facilities in Wellington.

66 . Petitioners identified several issues related to the

Updated BMP Plan that allegedly compromised the ability of the

Complex to meet and maintain standards. Those issues included:

the lack of a requirement that the Applicant provide the

District with a copy of the contract with a Village of

Wellington - approved manure hauler ; the failure to require that

BMP Officers be independent of the Applicants ; the failure to

require that the names and tel ephone numbers of the BMP Officers

be listed in the permit ; and the failure of the District to

require that violations by tenants be reported to the District,

rather than being maint ained on - site as required. Mr. Stone

testified that the BMP conditions included in the Updated BMP

Plan were sufficient to assure compliance. His testimony is

credited. Based on the foregoing, the Applicants have provided

reasonable assurances that the terms and conditions of the

Updated BMP Plan are capable of being implem ented and enforced.

Permitting Standards - Applicant Capabilities

67 . Provisions of r ule 40E - 4.301 that remain at issue in

this proceeding, and that are based on the capabilities of the

Applicants to implement t he Permit, are as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter . . . an applicant must

provide reasonable assurance that the

construction, alteration, operation,

maintenance, removal or abandonment of a

surface water management sy stem:

* * *

(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.

68 . As the owners of the Complex property, the Applicants

have the legal authority to ensure that their tenants,

licensees, invitees, and agents exercise their rights to the

property in a manner that does not violate applicable laws,

rules, and conditions.

69 . Regarding the financial capability of the Applicants

to ensure the successful and compliant operation of the Complex,

Mr. Stone testified that the entity that owns the Applicants,

Wellington Equestrian Partners, has considerable financial

resources ba cking the Complex venture. Furthermore, the

Applicants own the property on and adjacent to the Complex which

is itself valuable.

70 . As to the administrative capabilities of the

Applicants to ensure that the activities on the site will comply

with rel evant standards, Mr. Stone testified that an experienced

and financially responsible related entity, Equestrian Sport

Productions, by agreement with the Applicants, is charged with

organizing and operating events at the Complex, and that the

ApplicantsÓ BM P Officers have sufficient authority to monitor

activities and ensure compliance with the BMPs by tenants and

invitees.

71 . Mr. StoneÓs testimony that the Applicants have the

financial and administrative capability to ensure that events

and other ope rations will be conducted in a manner to ensure

that the stormwater management system conditions, including

BMPs, will be performed was persuasive and is accepted. The

fact that the Applicants are financially and administratively

backed by related parent and sibling entities does not diminish

the reasonable assurances provided by the Applicants that the

construction, operation, and maintenance of the Complex will be

undertaken in accordance with the Permit.

72 . Petitioners assert that many of the events to be held

at the Complex are sanctioned by international equestrian

organizations, and that their event rules and requirements --

which include restrictions on the ability to remove competition

teams from the grounds -- limit the ApplicantsÓ ability to

enforce the BMPs. Thus, the Petitioners suggest that reasonable

assurances cannot be provided as a result of the restrictions

imposed by those sanctioning bodies. The international event

rules applicable to hor ses and riders are not so limiting as to

diminish the reasonable assurances that have been provided by

the Applicants.

73 . Based on the foregoing, the Applicants have provided

reasonable assurances that construction and operation of the

stormwater man agement system will be conducted by entities with

sufficient financial, legal, and administrative capability to

ensure compliance with the terms and conditions of the permit.

74 . As a related matter, Petitioners assert the Applicants

fai led to disclos e all of their contiguous land holdings, thus

making it impossible for the District to calculate the actual

impact of the Complex. Although the application was, for a

number of items, an evolving document, the evidence demonstrates

that the Applicants adv ised the District of their complete 59 -

acre holdings, and that the Permit was based on a complete

disclosure. The circumstances of the disclosure of the

ApplicantÓs property interests in the area adjacent to the

Complex was not a violation of applicable standards, and is not

a basis for denial of the Complex permit.

Permitting Standards - C - 51 Basin Rule

7 5 . The final provision of r ule 40E - 4.301 that is at issue

in this proceeding is as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter . . . an applicant must

provide reasonable assurance that the

construction, alteration, operation,

maintenance, removal or abandonment of a

surface water management system:

* * *

(k) Will comply with any ap plicable special

basin or geographic area criteria

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

7 6 . Mr. Hall testified the Complex violated permitting

standards partly because it failed to comply with the C - 51 Basin

rule, Florida Administrative Code Rule 40E - 0 41, Part III ,

pertaining to on - site compensation for reduction s in soil

storage volume .

7 7 . Mr. Waterhouse testified that the C - 51 Basin rule does

not apply to the lands encompassed by the Acme Improvement

District permits, including the Complex property. The C - 51

Basin rule was promulgated in 1987, after the issuance of the

original Acme Imp rovement District permit. The District does

not apply new regulatory standards to properties that are the

subject of a valid permit or its modifications. Therefore, the

area encompassed by the 1978 Acme P ermit , and activities

permitted in that area as a modification to the 1978 Acme

Permit, are not subject to the C - 51 rule.

7 8 . The Joint Prehearing Stipulation provides that

ÐChapter 373, Fla. Stat., Chapter 40E - 4, Fla. Admin. Code, and

the Basis of Review for Environmental Resource Permit

Applications within the South Florida Water Management District

(July 4, 2010) are the applicable substantive provisions at

issue in this proceeding.Ñ Th e Stipulation did not identify

c hapter 40E - 41 as being applicable in this proceeding.

7 9 . Given the testimony of Mr. Waterhouse, which correctly

applies standards regarding the application of subsequently

promulgated rules to existing permits, and the stipulation of

the parties, the C - 51 Basin rule, Florida Administrative Code

Rule 40 - E - 041, Part III, does not apply to the permit that is

the subject of this proceeding. Therefore, the stormwater

management system does not violate r ule 40E - 4.301(1)(k).

Consideration of Violations

80 . Florida Administrative Code R ule 40E - 4.302(2),

provides, in pertinent part, that:

Wh en determining whether the applicant has

provided reasonable assurances that District

permitting standards will be met, the

District shall take into consideration a

permit applicantÓs violation of any . . .

District rules adopted pursuant to Part IV,

Chapt er 373, F.S., relating to any other

project or activity and efforts taken by the

applicant to resolve these violations. . . .

81 . Petitioners have identified several violations of

District rules on or adjacent to the Complex property during the

course o f construction, and violations of District rules

associated with the Palm Beach International Equestrian Center

(PBIEC), the owner of which shares common managers and officers

with the Applicants , for consideration in determining whether

reasonable assuran ces have been provided .

Violations on or Adjacent to the Complex

82 . On March 22, 2012, the District performed an

inspection of the Complex property. The inspection revealed

that the Applicants had constructed the linear berm along the

eastern side of the Property that was the subject of the

January 25, 2012 , application for modification of the Permit.

The construction was performed before a permit modification was

issued, and was therefore unauthorized. A Notice of Violati on

was issued to Far Niente Stables II, LLC , on March 22, 2012 ,

that instructed Far Niente Stables II, LLC , to cease all work on

the Complex . S everal draft consent orders were provided to Far

Niente Stables II, LLC, each of which instructed Far Niente

Stables II, LLC , to cease and desist from further construction.

Construction was not stopped until April 18, 2012. The matter

was settled through the entry of a Consent Order on May 1 0 , 2012

that called for payment of costs and civil penalties . The b erm

was authorized as part of the March 26, 2012 Complex permit

modification. A ll compliance items were ultimately completed to

the satisfaction of the District

83 . During inspections of the Complex by the parties to

this proceeding , it was discovered that yard drains had been

constructed between the stables and connected to t he stormwater

management system , and that a bathroom/utility room had been

constructe d at the north end of the horse - washing facility . The

structures were not depicted in any plans submitted to the

District, and were not authorized by the Permit. The yard

drains had the potential to allow for animal waste to enter

M oose Lake . The Applicants, under instruction from the

District, ha ve capped the yard drains. No other of ficial

compliance action has been taken by the District. A permit

condition to ensure that the yard drains remain capped is

appropriate and warranted .

84 . At some time during or before 2010, a mound of fill

material was placed on the derby and grand prix field to the

north of the Complex to be used as an event obstacle. Although

there was a suggestion that a permit should have been obtained

prior to the fil l being placed, the District has taken no

enforcement action regarding the earthen mound.

8 5 . Petitioners noted that the Complex is being operated,

despite the fact that no notice of completion has been provided,

and no conversion from the construction phase to the operation

phase has been performed as required by General Condition No s . 6

and 7 of the Complex permit. Such operations constitute a

violation of the permit and, as such, a violation of District

rules. However, the District has taken no offi cial action to

prohibit or restrict the operation of the Complex pending

completion and certification of the permitted work and

conversion of the permit to its operation phase.

8 6 . The construction of the berm, yard drains, and

bathroom/utility room , and the operation of the Complex, causes

concern regarding the willingness of the Applicants to work

within the regulatory parameters designed to ensure protection

of FloridaÓs resources. However, given the scope of the Complex

as a whole, and given that the violations were resolved to the

satisfaction of the District, the violations, though considered,

do not demonstrate a lack of reasonable assurances that District

permitting standards will be met.

Violations related to the PBIEC

8 7 . At some time prior to February 13, 2008, one or more

entities affiliated with Mark Bellissimo assumed control and

operation of the PBIEC. When the facility was acquired, the

show grounds were in poor condition, there were regulatory

violations, it had no BMPs of consequence, there were no covered

horse - wash racks, and the wash water was not discharged to a

sanitary sewer system.

8 8 . After its acquisition by entities associated with

Mr. Bellissimo, the PBIEC was substantially redesigned and

rebuilt, an d BMPs that met or exceeded the requirements of the

Village of Wellington were implemented. The PBIEC currently has

12 arenas that include facilities for show jumping events, and

nine horse - wash racks. The PBIEC has the capacity to handle

approximately 1 ,700 horses.

8 9 . On March 14, 2008, the District issued a Notice of

Violation to Far Niente Stables V, LLC, related to filling and

grading of an existing stormwater management system and lake

system at the PBIEC ; the failure to maintain erosion and

tur bidity controls to prevent water quality violations in

adjacent waters ; the failure to maintain manure and equestrian

waste BMPs ; and the failure to transfer the PBIEC stormwater

management permit to the current owner . On October 9, 2008, Far

Niente Stabl es V, LLC , and the District entered into a Consent

Order that resolved the violations at the PBIEC , required that

improvements be made , required the implementation of advanced

BMPs, and required payment of costs and civil penalties. On

January 12, 2011, a notice was issued that identified

deficiencies in the engineerÓs construction completion

certification for the stormwater manage ment system improvements,

horse - wash facility connections, and other activities on the

PBIEC. Although completion of all items required by the Consent

Order took longer -- in some instances significantly longer --

than the time frames set forth in the Consent Order, 6 / all

compliance items were ultimately completed to the satisfaction

of the District.

90 . On January 7, 2011, the District issued a Notice of

Violation and short - form Consent Order to Far Niente Stables,

LLC, which set forth violations that related to the failure to

obtain an environmental resource permit related to ÐTract D and

Equestrian Club Drive Realignment.Ñ T he short - form Consent

Order was signed by Far Niente Stables, LLC , and the compliance

items were ultimately completed to the satisfaction of the

District.

91 . Based on the foregoing, the violations at the PBIEC,

though considered, do not demonstrate a lack of reasonable

assurances that District permitting standards will be met for

the Complex Permit.

CONCLUSIONS OF LAW

Jurisdiction

92 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceedin g. §§ 120.569 and 120.57, Fla. Stat.

Standing

93 . Petitioners, Charles and Kimberly Jacobs, have

demonstrated the requisite standing to initiate and maintain

this proceeding as established in the Order on Standing and

Timeliness entered on June 29, 2012.

Burden of Proof

94 . The permit at issue in this proceeding is an

environmental resource permit issued under chapter 373 , Part IV .

Section 120.569(2)(p) provides that:

For any proceeding arising under chapter

373, chapter 378, or chapter 403, if a

nonapplicant petitions as a third party to

challenge an agency's issuance of a license,

permit, or conceptual approval, the order of

presentation in the proceeding is for the

permit applicant to present a prima facie

case demonstrating entitlement to the

license, permit, or conceptual approval,

followed by the agency. This demonstration

may be made by entering into evidence the

application and relevant material submitted

to the agency in support of the application,

and the agency's staff report or notice of

intent to approve the permit, license, or

conceptual approval. Subsequent to the

presentation of the applicant's prima facie

case and any direct evidence submitted by

the agency, the petitioner initiating the

action challenging the issuance of the

perm it, license, or conceptual approval has

the burden of ultimate persuasion and has

the burden of going forward to prove the

case in opposition to the license, permit,

or conceptual approval through the

presentation of competent and substantial

evidence.

9 5 . Applicants made their prima facie case of entitlement

to the P ermit and, therefore, the burden of ultimate persuasion

is on Petitioner s to prove their case in opposition to the

permit by a preponderance of the competent and substantial

evidence.

9 6 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily. Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

Envtl. Reg. , 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald

v. DepÓt of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977). Therefore, the final January 7, 2013 , iteration of the

Permit is properly at issue.

Reasonable Assurance

9 7 . Issuance of the Permit is dependent upon there being

reasonable assurance that the activities authorized by the

Permit will meet applicable statutory and regulatory standards.

§ 373.413, Fla. Stat.; Fla. Admin. Code R. 40E - 4.301 and 40E -

4.302.

9 8 . Reasonable assuranc e means Ða substantial likelihood

that the project will be successfully implemented.Ñ See

Metropolitan Dade Co. v. Coscan Fla. , Inc., 609 So. 2d 644,

648 (Fla. 3d DCA 1992). Reasonable assurance does not require

absolute guarantees that the applicable co nditions for issuance

of a permit have been satisfied. Furthermore, speculation or

subjective beliefs are not sufficient to carry the burden of

presenting contrary evidence or proving a lack of reasonable

assurance necessary to demonstrate that a permit s hould not be

issued. FINR II, Inc. v. CF Industries, Inc. , Case No. 11 - 6495

(DOAH Apr. 30, 2012; DEP June 8, 2012), see also Menorah Manor,

Inc. v. Ag. for Health Care Admin. , 908 So. 2d 1100, 1104 (Fla.

1st DCA 2005). As to evidence of things that could happen at a

facility based on vagaries of human conduct, an applicant Ðmust

provide reasonable assurances which take into account

contingencies that might reasonably be expected, but an

applicant is not required to eliminate all contrary

possibilities, ho wever remote, or to address impacts which are

only theoretical and not reasonably likely. Ñ Charlotte C n ty. v.

IMC - Phosphates Co. , Case No. 02 - 4134 (DOAH Aug. 1, 2003; DEP

Sept. 15, 2003).

9 9 . Section 1.3 of the Basis of Review provides, in

pertinent part, that:

The criteria contained herein were

established with the primary goal of meeting

District water resource objectives as set

forth in Chapter 373, F.S. Performance

cri teria are used where possible . . . .

Compliance with the criteria herein

cons titutes a presumption that the project

proposal is in conformance with the

conditions for issuance set forth in Rules

40E - 4.301 and 40E - 4.302, F.A.C.

100 . Applying the standards of reasonable assurance to the

Findings of Fact in this case, it is concluded that reasonable

assurances have been provided by the Applicants that the Complex

as designed will meet the applicable standards applied by the

District, including Florida Administrative Code Rule 40E -

4.301(1) and the Basis of Review, and that the Environmental

Resource Standard Permit No. 50 - 00548 - S - 203 should therefore be

issued.

101 . Petitioners did not meet their burden of ultimate

persuasion that the Applicants are not entitled to issuance of

E nvironmental R esource Stand ard Permit No. 50 - 00548 - S - 203.

However, i t is evident that the efforts of Petitioners have

resulted in a careful re examination of the Complex project, the

addition of water detention areas and other elements that have

improved the water storage and treatm ent capabilities of the

stormwater management system, 7/ and the discovery and correction

of non - compliant features that could have impaired the ability

of the Complex to meet the permitted standards. While

Petitioners have not ÐprevailedÑ in this case, th ey were clearly

justified in taking what have been proven to be meritorious and

commendable steps to ensure that the Applicants took seriously

their responsibilities to their neighbors and the environment of

designing and operating the Complex in complianc e with the

standards required by law.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein it is RECOMMENDED that the South Florida

Water Management District enter a final order :

1. Incorporating the June 29, 2012 , Order of Standing and

Timeliness;

2. A pproving the issuance of Surface Water Management

System Permit No. 50 - 00548 - S - 203 to Far Niente Stabl es II, LLC;

Polo Field One, LLC; Stadium North, LLC; and Stadium South,

LLC. ; and

3. Imposing, as an additi onal condition, a requirement

that the unpermitted yard drains constructed between the stables

be permanently capped, and the area graded, to prevent the

unauthorized introduction of equine waste from the area to the

stormwater management system .

DONE AND ENTERED this 26th day of April , 201 3 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 26th day of April , 201 3 .

ENDNOTE S

1 / The November 15, 2007 , permit referenced an April 12, 2006 ,

permit modification pursuant to which Basin B stormwater was

redirected into Basin A, improvements were made to the Basin A

stormwater management system to handle the combined volume along

with future development, and the combined volume of stormwater

was pumped into the C - 51 canal at the northwest corner of the

Acme Improvement District boundary.

2 / The undersigned recognizes that construction of the Complex

has been substantially completed. However, since a petition for

hearing was timely filed, the P ermit issued by the District

remains proposed agency action, subject to the imposition of

additional conditions or denial. Thus, the Permit will continue

to be characterized as Ðproposed.Ñ

3/ Mr. HallÓs post - development storage calculation of 25.03

acre /feet included the final amendment to the application that

added the additional Basin 5 dry detention area.

4/ The calculations that demonstrated compliance with the rules

and Basis of Review provisions regarding water quantity and

storage were generated after the Applicants added additional dry

retention and exfiltration trench capacity in December 2012.

5 / Although the sampling results were reliable, there was no

testimony tying those levels to any activities undertaken by the

Applicants.

6 / The connection of the horse - wash racks to the Village of

Wellington sanitary sewer was delayed, in part, due to

negotiations with the Village regarding the waste stream,

especially measures to prevent the introduction of horse hair to

the system. The re solution of the issues allowed for the

inclusion of similar facilities in the Complex p ermit

application.

7/ Without the addition of the Basin 5 dry detention area and

other additions to the Complex made after the filing of the

Petition, the evidence suggests that post - development water

storage would have fallen short of pre - development storage, thus

potentially resulting in denial of the Permit.

COPIES FURNISHED :

Susan Roeder Martin, Esquire

South Florida Water Management District

MSC 1410

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

John K. Shubin, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130 - 1610

John J. Fumero, Esquire

Sundstrom, Friedman and Fumero, LLP

Suite 2020

950 Peninsula Corporate Circle

Boca Raton, Florida 33487

Jed R. Schneck, Esquire

Sundstrom, Friedman and Fumero, LLP

Suite 2020

950 Peninsula Corporate Circle

Boca Raton, Florida 33487

Thomas F. Mullin, Esquire

Sundstrom, Friedman and Fumero, LLP

Suite 2020

950 Peninsula Corporate Circle

Boca Raton, Florida 33487 - 1389

Jeffrey Scott Bass, Esquire

Shubin and Bass, P.A.

3rd Floor

46 Southwest 1st Street

Miami, Flori da 33130

Melissa L . Meeker, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 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 Final Order in this case.