15-000572 Alico West Fund, Llc vs. Miromar Lakes, Llc, And South Florida Water Management District Status: Closed Recommended Order on Wednesday, January 27, 2016.

Summary: Applicant provided reasonable assurances that permit satisified all relevant rules and other criteria. Application deemed a minor modification of a conceptual permit subject to rules in effect in 1999.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALICO WEST FUND, LLC,

Petitioner ,

vs. Case No. 1 5 - 057 2

MIROMAR LAKES, LLC, AND SOUTH

FLORIDA WATER MANAGEMENT

DISTRICT,

Respondents.

_______________________________/

RECOMMENDED ORDER

On October 5 through 9, 2015, a hearing was held in

Fort Myers, Florida, before D. R. Alexander, Administrative Law

Judge, Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner : Kevin S. Hennessy, Esquire

Mat t hew B. Taylor, Esquire

Lewis, Longman and Walker, P.A.

Suite 620

101 Riverfront Boulevard

Bradenton , Florida 34205 - 8841

For Responden t: Keith L. Williams, Esquire

(District) South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 334 0 6 - 3 007

For Respondent: Martin L. Steinberg, Esquire

( Miro mar) David B. M ass ey, Esquire

Justin S. Brenner, Esquire

Hogan Lovells US, LLP

Suite 2700

600 Brickell Avenue

Miami, Florida 33131 - 3 085

Timothy J. Perry, Esquire

Oertel, Fernandez,

Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

STATEMENT OF THE ISSUE

The issue is whether to approve an Environmental Resource

Permit (ERP) modification for the construction of a surface

water management system, to be issued to Respondent, Miromar

Lakes, LLC (Miromar) , which will serve a 29 .08 - acre single -

fami ly residential development known as The Peninsula Phase IV

(Phase IV) located in Lee County , Florida .

PRELIMINARY STATEMENT

On November 25, 2014, Respondent, South Florida Water

Management District (District), p ublished notice that it

intended to approve an application by Miromar to modify

previously - approved ERP Permit No. 36 - 03568 - P, which provided

conceptual authorization for residential development in an area

known as the Miromar Lakes community . Alico West Fund, LLC

(Alico) , a competing developer tha t owns property adjacent to

the proposed activity, timely requested a hearing to contest the

agency action, and the matter was referred to DOAH to conduct a

hearing. After Miromar revised its site plan in June 2015,

Alico was authorized to file a n Amended Petition.

At the final hearing, Alico presented the live testimony of

f our witnesses and the deposition testimony of seven witnesses .

Alico Exhibits 43 - 47, 52, 55 - 57, 59, 61, 63 - 65, 83, 88, 89, and

93 were accepted in evidence. Alico also proffered two

e xhibits. Miromar presented the testimony of one witness .

Miromar Exhibits 5 - 10, 37, 38, 42, 43, and 45 were received in

evidence. Miromar Exhibit 64, on which a ruling was reserved,

is accepted. Miromar and the District jointly presented the

testimony of two witnesses . Joint Exhibits J A1 , J1 - 15, J31 - 33,

J45, J47, J50, J51, J69 - J 72, J74, J82 - 84, J87, J93, J101 - 110,

J116 - 120, J124 - 127, J141, J145, J149 - 151, J158, and J160 were

accepted in evidence. Joint Exhibit 130, on which a ruling was

reserved, is accepted. Eleven written motions filed by Miromar

just before , or at the outset of, the final hearing were either

ruled on at hearing, or if a ruling was reserved, they are

rendered moot by the final disposition of th e case. Alico's

Motion to Strike Non - Record Materials in Respondents' Proposed

Recommended Order s , filed on January 8, 2016, is denied, as

those attachments are simply proposed permit conditions based on

evidence presented at hearing.

An 11 - volume T ranscript of the proceeding was filed. The

parties submitted proposed recommended orders ( PROs ) , which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A . The Parties

1. Miromar is a Florida limited liability corporation that

owns property in the Miromar Lak es community in Lee County on

which a development known as Phase IV will be constructed .

Miromar is the applicant for the Phase IV permit.

2 . The District is a government entity with the power and

duty to exercise regulatory jurisdiction over the propose d

project pursuant to part IV, chapter 373, Florida Statutes, and

title 40E, Florida Administrative Code . In implementing this

power and duty, the District has adopted the Applicant ' s

Handbook (AH) to provide standards and guidance to applicants.

3 . Alic o is a Florida limited liability c orporation with

its principal place of business in Fort Myers, Florida. It is

the owner of property immediately adjacent to and north of

Miromar's property. Respondents have stipulated to the facts

necessary to establish Alico's standing.

B. The Conceptual Permit

4 . This case concerns Miromar ' s application to modify a

conceptual permit issued by the District more than 15 years ago .

On June 10, 1999, the District issued ERP Permit No. 36 - 03568 - P,

a conceptual approval p ermit for the development of a large,

mixed - use residential development with a golf course , known as

Miromar Lakes, that lies east of Interstate 75 (I - 75), south of

Alico Road, and north of Florida Gulf Coast University. The

permit also approved a surface water management system designed

to serve a 1481.1 - acre mixed - use development within Miromar

Lakes. Alico assert s that the permit is so vague in future

development details that it is impossible to d etermine whether

Phase IV is consistent with its terms a nd conditions . However,

the 1999 permit was not c ontested , and any a ttempt in this

proceeding to challenge that permit , or subsequent modifications

to the permit that are now final , is untimely.

5 . A conceptual permit is available to applicants who wish

to have their design concept approved for a master plan or

future plan. So long as the future phases are consistent with

the conceptual permit and there are no changes to applicable

state water quality standards or special basin criteria , the

applicant do es not need to reapply under the current rules for

subsequent phases. Instead, it allows a n applicant to take

advantage of the rules in effect at the time of the original

permit issuance.

6 . A conceptual permit typically leaves construction

details to future development decisions. As District witness

Waterhouse explained, this is " the nature of a conceptual

permit. " Because t he landowner does not know the precise manner

in which the property will be developed years down the road, " it

doesn ' t make sens e to force the landowner to pretend that they

do because it ' s a pretty good bet that those things are going to

change to some extent in the future. " By way of example,

Waterhouse noted that " [a]s long as it ' s single family

proposed then and it ' s propose d now, I would characterize that

as sufficient detail. " It is not surprising, then, that the

1999 permit contains very little detail regarding the existence,

location, or development of roads, lots, a stormwater management

system, or grading , and that the construction permit for

Phase IV has far more detail than the conceptual permit. Even

Alico ' s expert agreed that there is no requirement that a

conceptual permit include the details of each subsequent

construction phase. A fair inference to draw is t hat the

District intended for the developer to have considerable

latitude in developing the large tract of undeveloped land,

phase by phase, over the life of the conceptual permit.

7. T he 1999 permit has been modified over 60 times since

its issuance , and to date , significant portions of Miromar Lakes

have been constructed. Except for the current, on - going feud

be tween Miromar and Alico over several recent or pending

applications (see Case Nos. 15 - 1050, 15 - 3937, and 15 - 5621), none

of these modifications w ere contested.

C. The Property at Issue

8 . Phase IV is a 29.08 - acre subdivision within an area of

the Miromar Lakes community known as the Peninsula. Located

within Basin 6, Phase IV is the last phase of development

approved by the conceptual permit f or residential development in

the Peninsula. All prior Peninsula phases have been permitted

and developed, or are in the process of development. Prior

phases were permitted based on their consistency with the

conceptual permit, and none w ere challenged b y third parties.

9. The area under Miromar's requested permit in th e

instant case was conceptually authorized for single - family

residential development. This is confirmed by language in the

1999 permit, which describe s the conceptual proposal for Basin 6

as " includ[ing] 639.7 acres of residential, golf course, and

mixed - used [sic] development." Jt. Ex. 3, p. 275. The permit

also provid es that each of the four sub - basin s in Basin 6 should

"have a water quality structure that provides treatment for the

first one inch of stormwater runoff from the sub - basin . . . and

that attenuation for Basin 6 is achieved onsite via the proposed

sub - basin lakes and also by an existing 244.2 - acre borrow lake. "

Id. While the 1999 permit establishes standards for f lood

c ontrol elevations, minimum lot elevations, and discharge rates,

more specific development guidance is not provided.

1 0 . When the conceptual permit was issued, Basin 6

contained one former mining pit dredged from uplands to be used

as a man - made lake for r ecreational purposes . A second mining

pit , later converted to a lake, continued mining operations

until 200 6 . Th e following year, the District authorized the two

borrow lakes to be connected by a series of channels and canals ,

forming a privately - owned, 660 - acre waterbody now known as

Lake 5/6. Alico ' s property includes Lake 5, which makes up the

northern portion of Lake 5/6, while Lake 6 to the south , owned

by the Miromar Lakes Community Development District, is

surrounded by Miromar ' s development. A lico has an easement over

portions of Lake 6 for recreational uses under a Lake Use

Agreement. Because the two connected lakes are to be used only

for recreation and attenuation purposes , Lake 5/6 is designated

as Class III waters and cannot be used for s tormwater treatment.

It is not classified as an Outstanding Florida Water (OFW) or an

Impaired Florida Waterbody.

1 1 . Lake 5/6 discharges over a control weir into an un -

channeled slough system known as the S t ewart Cypress Slough.

The water travels sev eral miles through the slough system ,

passes several intervening properties that also discharge waters

into the slough , and then runs underneath I - 75 . It eventually

reach es the Estero River , an OFW and Impaired Florida Waterbody,

which flows into the Este ro Bay , an OFW . There is no direct

discharge of waters from Lake 5/6 to the Estero River. The

evidence shows that the project will not increase the overall

discharge rate from the control weir for Lake 5/6.

1 2 . In February 2013, the District approved a nother

Miromar application, known as Phase III, which authorized the

third phase of development within the same peninsula where the

Phase IV project will be located. That development contains two

wet detention structures (Lakes 1 and 3) that will also ser vice

the Phase IV project. Th e Phase III permit was issued using the

1999 rules and regulations and was not contested.

D. The Application

i. The O riginal A pplication

1 3 . On November 25, 2014, the District issued its notice

of intent to issue Miromar a permit authorizing the construction

and operation of a stormwater system serving 29.08 acres of

residential development that included multi - family residences,

single - family residences, 4 9 boat slips, and road construction.

Phase IV is a very small portion of the 1,481 - acre development

approved in the conceptual permit.

14. The project is located on Via Salerno Way and

Via Cassina Court within Basin 6 . C onstruction was originally

proposed in Sub - Basins 1 and 3. There is an approved Master

Plan for stormwater management facilities within the project

area. The site was previously cleared and filled and no

wetlands are located on the site.

1 5 . The original construction in Sub - Basin 1 consisted of

a roadway, 22 single - family residential lots, and sto rmwater

conveyance facilities. Also included were shoreline contour

shaping, placement of rip - rap on portions of the Lake 5/6

shoreline to enhance stability, enhanced littoral zones, and

boat docks. Stormwater within that Sub - Basin flows via sheet

flow a nd interconnected inlets to the existing wet detention

area (Lake 1) located in Phase III north of the site. The wet

detention area provides the required water quality treatment

volume for the project prior to discharge to Lake 5/6.

1 6 . The original prop osed construction in Sub - Basin 3

consisted of a roadway, 11 single - family residential lots, and

16 multi - family buildings with associated internal roadway,

parking areas, and stormwater treatment, storage, and conveyance

facilities. Also included within t he original plans were

shoreline contour shaping, placement of rip - rap on portions of

Lake 5/6 shoreline to enhance stability, enhanced littoral

zones, and boat docks.

1 7 . Stormwater runoff within Sub - Basin 3 flows via sheet

flow and interconnected inle ts to the existing wet detention

area (Lake 3) located in Phase III north of the site. The

original application include d a request to increase the surface

area of Lake 3 by approximately 0.1 acre and to construct three

dry detention areas within the multi - family development area.

The wet and dry detention areas provide the required water

quality treatment for the project prior to discharge to

Lake 5/6.

ii. The R evised P roject

1 8 . After the case was referred to DOAH, b y letter dated

June 8, 2015, Miromar 's project engineer provided the District

with proposed changes to the site plan, to be used at the final

hearing then scheduled to begin on June 24, 2015 , which include

the replacement of 16 multi - family buildings and driveways on

Via Cassina Court with 23 single - family residential lots;

removal of the 16 multi - family boat docks located at the

southern end of Via Cassina Court; reducing the number of boat

docks to 45 single - family docks; relocation of the three dry

detention areas shown on the propo sed site plan; and

clarifi cation of the lot grading cross - section to ensure that

stormwater runoff from the development w ill be directed to the

stormwater management system and not Lake 5/6 . Updated plans,

drawings, and specifications, and new water quali ty calculations

accompanied the letter and were intended to replace original

Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA - 1, pp. 244 -

257. Th e changes resulted in a continuance of the final hearing

and Alico's filing of an Amended Petition. By amen dment at

final hearing, Miromar removed the 45 single - family docks.

19 . The June 8 letter state s that the changes w ill not

increase pollution or reduce the efficiency of the stormwater

management system. Miromar acknowledges that some of these

changes were to resolve con cerns raised by Alico . Miromar now

seeks approval of the Phase IV p ermit, incorporating the changes

proposed by the June 8 letter and those agreed to at the final

hearing.

2 0 . Because there was no requirement to provide a site -

specif ic nutrient loading analysis when the 1999 permit was

issued -- th is analysis was not yet formally developed -- th e

District did not require, and Miromar did n ot submit , such an

analysis with its application.

2 1 . Un der the conceptual permit, Miromar was required to

provide treatment for one inch of stormwater runoff in Basin 6.

Relying on this condition , Miromar applied that treatment to the

Phase IV permit. This results in the treatment of 7.09 acre -

feet of stormwater for the basin. After the constru ction shown

in the permit, the stormwater management system will treat 9.21

acre - feet, or more than is required under the 1999 permit .

22. The District established that n ew flood routing

calculations for the project were not necessary because Miromar

has set elevations for the water control structures in Lakes 1

and 3 at the same level as the road elevations , and the project

connects to an existing surface water treatment system . This

provides reasonable assurance that the project will not cause

flooding despite having no calculations from the applicant .

E. Alico's Objections

2 3 . Although couched in different terms , Alico 's concerns

can be generally summarized as follows. First, it contends the

application should be treated as a major modification of th e

conceptual permit and that Miroma r must satisfy current rules

and regulations , and not those in effect in 1999. Second, it

contends both the original and revised application s are

inconsistent with the conceptual permit and must be treated as a

new desig n, subject to all current rules and regulations.

Third, even though Miromar agreed at hearing to revise its

permit to address certain errors/ d eficiencies identified by

Alico's experts , Alico contends no revisions can be made at this

stage of the proceedin g, and that a new application must be

filed with the District and the review process started anew.

i . Is the A pplication a M ajor or M inor M odification?

2 4 . If the modification is minor, Miromar is required only

to satisfy applicable rules for issuance of a permit when the

conceptual permit was issued. Rule 62 - 330.315 and AH section

6.2.1 provide guidance in resolving this issue .

2 5 . R ule 62 - 330.315(2)(g) defines a minor modification as

one " that do [es] not substantially alter the permit

authorizatio n, increase permitted off - site discharge, increase

the environmental impact of the project, decrease required

retention, decrease required detention, decrease required flood

control elevations, or decrease po llution removal efficiency. "

2 6 . The rule a lso provides that the "factors that will be

considered in determining whether a change is minor are

described in section 6.2.1 of Volume I [ of the Applicant's

Handbook ] . " Section 6.2.1(d) lists a series of 14 factors to be

considered in determining whethe r a modification will cause more

than minor changes under rule 62 - 330.315(2). None of the

factors is dispositive alone, and the presence of any single one

of the factors does not necessarily mean that a modification is

major. All 14 factors are considere d together in determining

whether a modification is major.

2 7 . Using the factors set forth in rule 62 - 330.315(2), in

conjunction with section 6.2.1, the District reviewed the

application to determine whether it was a minor modification.

Based on th e se criteria, the District determined that the

application qualified as a minor modification of a conceptual

permit and that it satisfied applicable rules for issuance of a

permit for this subsequent phase of the project. Alico contends

that the initial revie w by a District staffer was only cursory

and was in no way a meaningful assessment. Even if this is

true, subsequent reviews by District staff , including witness

Waterhouse, who supervises the ERP Bureau , was a signatory on

the 1999 permit, and has review ed thousands of ERP applications,

confirmed that the application, as revised on June 8 and at

final hearing , meets the criteria for a minor modification . The

testimony of District witness es W ater house and Waters has been

accepted as being the most credibl e on this issue.

2 8 . In its review of the original application, the

District considered the inclusion of boat docks as the only

aspect of th e application that made the project a major

modification . In all other respects, the District determined

that the modification would not cause more than minor changes.

With the removal of the boat docks , the District concluded that

the application did not substantially alter the design of the

activities or the conditions of the conceptual approval permit.

2 9 . Alic o's expert , who ha s n ever performed a similar

consistency analysis on any project , testified that several of

the 14 factors in section 6.2.1(d) might be affected. But he

opined with certitude that factor 2 is implicated by the

Phase IV permit. F actor 2 comes into play when there is an

"[i]ncrease in proposed impervious and semi - impervious surfaces

more than 10 percent or 0.5 acres, which ever is less, unless the

activities were permitted with stormwater treatment and flood

attenuation capability suffici ent to meet the permitting

requirements for the proposed modification." By citing only one

factor, the expert implicitly conceded that the o ther 13 factors

are not present, thus weighing towards a finding of consistency.

30 . Alico's expert focused only o n the first part of

factor 2 by calculating the impervious area of the project , as

he did not believe t he conceptual permit approved a master

stormwater management system capable of sufficiently meeting the

treatment and attenuation requirements for the Ph ase IV project.

However, the more persuasive evidence is that the Master Plan in

the 1999 permit is capable of meeting the treatment and

attenuation requirements for the project . T herefore , f actor 2

is not implicated by the Phase IV permit. Even if the factor

w ere present, it would be insufficient to o ut weigh the other

13 factors and render the project a major modification of the

1999 permit.

3 1 . The preponderance of the evidence supports a finding

that the District may consider as minor the revised a pplication.

ii . Consistency with the Conceptual Permit

3 2 . A consistency analysis is conducted under two related

rules. First, rule 62 - 330.315 identifies when a subsequent

permit is either a major or minor modification of a prior

conceptual permit. As found in the previous section of this

Recommended Order, the modification is minor. Second, rule 62 -

330.056 provides a rebuttable presumption that subsequent

consistent development phases are likely to meet the applicable

rules and regulations if the fac tors listed in subsections

(7)(a) through (7)(d) are met. The primary factors for

consistency comparison are identified in subsection (7)(a) as

"the size, location and extent of the activities proposed, the

type and nature of the activities, percent imper viousness,

allowable discharge and points of discharge, location and extent

of wetland and other surface water impacts, mitigation plans

implemented or proposed, control elevations, extent of

stormwater reuse, detention and retention volumes, and the

exten t of flood elevations." Subsections (7)( b ) and ( c ) provide

that in order to have consistency, there can be no changes to

state water quality standards, in this case the standards for

Lake 5/6 , or special basin c riteria . There is no evidence that

applicab le state water quality standards or special basin

criteria have changed. Finally, subsection (7)(d) requires that

there can be no substantive changes to the site characteristics.

Except for the conceptual permit, t here is no requirement that

the District compare the Phase IV permit with any other permit.

3 3 . The District views the location and the land use type

of the project as the two most important criteria for

determining consistency . As required by the rule, the District

also compares the environ mental impacts of the modification to

the conceptual permit, control elevations, and discharge rates.

The District credibly determined there is no inconsistency.

3 4 . While some site characteristics in Basin 6 have

obviously changed over the last 16 years , t he District's review

found no substantive changes that would affect whether the

design concepts approved in the conceptual approval permit can

continue to be reasonably expected to meet the conditions for

authorizing construction of future phases. The District

credibly determined that the activities in Phase IV , as revised,

were similar to or less intensive than those authorized in the

conceptual approval permit and may actually provide a net

benefit to Lake 5/6 .

3 5 . Alico contends that a meaningful consistency analysis

was not conducted by the District staff er who reviewed the

original application . But s ubsequent review s by witness es

Water house and Waters confirmed that Phase IV , as revised, is

consistent with the conceptual permit based upon the ru le and

AH criteria .

3 6 . Besides the District's review , Miromar's expert

testified that Phase IV is consistent in land use as a single -

family residential development. He also testified that the

Phase IV permit was consistent with the 1999 permit in siz e and

location ; it maintained the same allowable rate of stormwater

discharge ; and it maintained required flood control elevations .

He further testified that the Phase IV permit did not change the

mitigation plans, permitted stormwater reuse, flood routin gs, or

storm stages provided by the 1999 permit. This testimony has

been credited in resolving th e issue .

3 7 . The preponderance of the evidence suppor ts a finding

that the Phase IV land uses are the same as contemplated in the

conceptual permit and the a lready - approved prior phases of

Miromar Lakes , and t he new permit is consistent with the

conceptual permit. Therefore, Miromar is entitled to a

rebuttable presumption that it meets the applicable rules and

standards in place when the 1999 permit was issue d. Alico

failed to rebut this presumption .

iii. Revisions and Amendments at the Final Hearing

3 8 . During the final hearing, Alico's experts identified

s everal errors and/ or deficiencies in the design of Miromar's

project , described below, that should be addressed before a

permit can be issued. Miromar agree s with some of these

concerns and asks that they be addressed through revisions

incorporated in to its permit . The District also concur s with

these changes . The record shows that they are appropriate ,

minor in nature , and d o not change the character of the permit.

There is no evidence that Alico is prejudiced by allowing these

revisions.

3 9 . Alico's expert testified that the Phase IV permit d oes

not provide sufficient information regarding the soi ls on the

Phase IV site. At hearing, Miromar agreed that any unsuitable

soils discovered during construction would be excavated and

removed and correctly disposed of in a landfill or other

uplands. Th is i s the common method of dealing with soils in

Lee County, where it is not unusual to find unsuitable soils

during construction. A special condition to this effect should

be included in the final permit to ensure clarity.

40 . Through a series of treatment ponds, Miromar proposes

t o treat nearly all storm water that falls on - site prior to its

d ischarge to off - site properties. Alico's expert testified t hat

the lot grading detail drawings inaccurately reflect the

elevations of certain portions of the lots and can result in

runoff from some lots being routed to Lake 5/6 , instead of

Lakes 1 and 3. Miromar agree s with this concern and represented

that the intent of the June 8 letter is that drainage for all

lots, except for the portion of lots within the 20 - foot Lake

Maintenance Easement (LME), which surround s the project on three

sides, be directed to the front of the lots toward the street,

and then to the treatment ponds. Water that falls naturally

within the LME will be treated by attenuation in Lake 5/6 prior

to off - site discharge. Miromar also agrees t o submit new

Tabular Lot Grading Revisions and a new Typical Lot Grading

Detail and to update its June 8 plans to reflect proposed lot

grading elevations consistent with the lot detail. Alico's

expert acknowledged that roof gutters are an additional

solut ion , and they should be installed on all roofs in order to

direct runoff to the front yards and then to the stormwater

system . Finally, to ensure proper lot drainage, Miromar agrees

that the secondary drainage pipe s to convey runoff from roofs,

gutters, a nd grassed areas will have a minimum size of six

inches. The District agrees that t he se changes will improve

water quality and ensure that all stormwater is properly

captured and directed into the stormwater system. A special

condition requiring these re visions should be included in the

final permit to ensure clarity.

4 1 . Alico's expert also testified that the plans should

include a requirement that Miromar follow best management

practices (BMPs) for the replacement of a control structure in

Lake 3, wh ich serves as a stormwater treatment pond. General

Condition 3 already addresses this issue by requiring Miromar to

use BMPs that prevent adverse impacts to the water resources and

adjacent lands . In addition, the June 8 letter provides plans

for BMPs fo r work at the site, including Lake 3. Although the

District found that reasonable assuranc es were provided by

General Condition 3 and the June 8 letter , to ensure clarity, a

special condition should be included in the final permit that

requires the use of BMPs for all construction, including the

replacement of an old boat ramp and the control structure in

Lake 3. Miromar and the District agree t hat th is revision i s

appropriate.

4 2 . Alico's expert opined that control structures CS - 1

(Lake 1) and WQS - 1.3 (Lake 3) , which have a circular bleeder

orifice with a four - inch diameter, should be limited to a

bleeder orifice of 3.7 inches in diameter. Although the

District found reasonable assurances existed with four - inch

bleeder orifices, S pecial C ondition 3 sho uld be modified to

reflect a 3.7 - inch bleeder for these control structures. This

will ensure that before being discharged, the water leaving the

two control structures receives the appropriate amount of water

quality treatment . Both Miromar and the Distr ict agree that

this revision is appropriate.

4 3 . With the removal of all docks and an old boat ramp ,

S pecial C onditions 2, 10, 11, and 13 through 17 require

modification , or deletion if necessary , to eliminate obsolete

language relating to the docks and ramp and to add language to

provide that construction and operation of the docks shown on

t he plans , specifications, and drawings are not authorized.

Miromar and the District agree to these revisions.

iv. Other Concerns

4 4 . A lico 's expert contended tha t under current District

rules, Miromar is required to provide stormwater treatment equal

to the greater of (a) one inch multiplied by the total project

acreage, and (b) 2.5 inches multiplied by the project's

impervious area. However, Alico did not pursue this issue in

its PRO , probably because its expert agree s that the current

design of the project me e t s District rule criteria for one inch

of water quality treatment.

4 5 . Alico's expert also contends that Miromar is required

to provide an additional 50 percent of stormwater treatment

above the one - inch requirement. This is contrary to the

conceptual permit , which d o es not require additional stormwater

treatment . Also, the requirement does not apply when there is

no direct discharge of stormwater into an OFW . Even so, Miromar

voluntarily agreed to increase the stormwater treatment capacity

for Phase IV, which results in excess treatment in Basin 6

greater than 50 percent above the treatment required for the

Phase IV area. Alico argues that the additio nal treatment is

illusory, as it r elies on additional treatment from an adjoining

phase , and not Phase IV . Even if this is true, Alico's expert

admits that the current one inch treatment meets the

requirements of the rule for issuance of a permit .

4 6 . A lico's expert contended that the Phase IV permit

allows the bulkhead to be developed on more than 40 percent of

total shorelines , in contravention of AH section 5.4.2 ,

Volume II, which restricts a bulkhead to no more than 40 percent

of the lake perimete r . However, Miromar 's expert established

that the Phase IV hardened shorelines would comprise less than

40 percent of the total shoreline in the Phase IV area and

therefore comply with th is requirement. His testimony was not

credibly refuted.

4 7 . Even t hough t here is no direct discharge from the

project into the Estero River or Estero Bay, and the project

will not result in higher discharge rates from the overall

system outfall from Lake 5/6 , b ased on water samples taken in

August 2015 , Alico's expert op ined that the project will cause a

discharge of excess nutrients into an OFW. The evidence shows ,

however, that these water samples were taken after heavy rains

when the expert observed water flowing upstream from the slough

into Lake 5/6, rather than dow nstream . The expert also admitted

he had done no testing, analysis, or modeling demonstrating that

any pollutant would even reach the Estero River . He failed to

take a baseline sample of water quality for any nutrients for

which the slough, Estero River, or Estero Bay may be impaired ,

and he conceded that it was possible that there was no net

discharge from Lake 5/6 into the slough during the time of his

testing. There is insufficient evidence to sustain this

allegation.

4 8 . Other alleged deficiencies o r errors in the

application, as revised, that are not addressed in this

Recommended Order have been considered and found to be without

merit.

F. ERP and Public Interest Criteria

4 9 . The criteria the District uses when reviewing an

ERP application ar e contained in the AH and rule s 62 - 330.301 and

62 - 330.302 . In addition, an applicant must provide reasonable

assurance that a proposed project is not contrary to the public

interest. § 373.414, Fla. Stat. ; AH § 10.2.3.

50 . Alico failed to prove by a pre ponderance of the

evidence that Miromar has not provided reasonable assurance that

the activities authorized by the ERP comply with all applicable

ERP permitting criteria.

51 . Alico failed to prove by a preponderance of the

evidence that Miromar has not provided reasonable assurance that

the proposed project is not contrary to the public interest.

C ONCLUSIONS OF LAW

5 2 . The parties have stipulated to the facts necessary to

establish that Alico has standing to contest the permit.

5 3 . Section 120.569(2) (p) is applicable to this case. It

establishes the order of presentation and burden of proof in a

permit challenge case under chapter 373. O nce Miromar has

introduced evidence sufficient to constitute a prima facie case,

as it did here, Alico has the "bu rden of ultimate persuasion and

the burden of going forward to prove the case in opposition to

the [permit] by competent and substantial evidence." Id.

5 4 . The standard of proof is by a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

5 5 . Because this is a de novo proceeding, and not merely a

review of the prior agency action, the parties may present

additional evidence not included in the permit application and

other documents previously submitted to the District during the

permit appli cation review process. See, e.g. , Hamilton Cnty.

Bd. of Cnty. Comm'rs v. State Dep't of Envtl. Reg. , 587 So. 2d

1378, 1387 (Fla. 1st DCA 1991). "Any additional information

necessary to provide reasonable assurance that the proposed

[project] would comply with the applicable . . . standa rds could

be properly provided at the hearing." Id. See also Key

Biscayne Council v. State, Dep't of Nat. Res. , 579 So. 2d 293,

294 - 95 (Fla. 4th DCA 1991 ) (absent a showing of prejudice , it is

an abuse of discretion to den y a request to amend, even if made

on the day of the hearing); Fla. Bd. of Med. v. Fla. Acad. o f

Cosmetic Surgery, Inc. , 808 So. 2d 243 , 255 (Fla. 1st DCA

2002) (a party is not precluded from amending its application

during the hearing if there is no showin g of prejudice to the

opposing party) . The additional information provided at hearing

is necessary to provide reasonable assurances that the proposed

activity will comply with applicable standards. There is no

evidence that Alico will be prejudiced by th e amendments or

revisions.

5 6 . T here is ample authority for approving permits with

new conditions , if changes are supported by the evidence at the

final hearing . See, e.g. , Heine v. Alico West Fund, LLC , Case

No. 15 - 1049 (Fla. DOAH Nov. 3, 2015; SFWMD Dec. 16, 2015);

Jacobs & Solar Sportsystems, Inc. v. Far Niente, II, LLC , Case

No. 12 - 1056 (Fla. DOAH Apr. 26, 2013 ; SFWMD May 20, 2013);

Bussing v. Gainesville Renewable Energy C tr. , LLC , Case No. 10 -

7281 (Fla. DOAH Dec. 7, 2010; Fla. DEP Dec. 27, 2010); Peace

River/Manasota Reg. Water Supply Auth. v. IMC Phosphates Co. ,

Case No. 03 - 0791 (Fla. DOAH May 9, 2005 ; Fla. DEP July 31,

2006) ; Billie v. St. Johns River Water Mgmt. Dist. , Case

No. 00 - 2230 (Fla. DOAH Apr. 9, 2001; SJRWMD June 13, 2001) ;

Sauls v. McAllister , Case No. 79 - 2030 (Fla. DOAH Feb. 12, 1980 ;

Fla . DER Mar. 13, 1980); Long v. Okaloosa Cnty. , Case No. 79 -

0876 (Fla. DOAH Mar. 28, 1980 ; Fla. DER May 15, 1980). See also

Manatee Cnty. v. State, Dep't of Envtl. Reg. , 429 So. 2d 360,

363 (Fla. 1st DCA 1983) ; Hopwood v. State, Dep't of Envtl. Reg. ,

402 So. 2d 1296, 1299 (Fla. 1st DCA 1981) . While they are

rather large in number, t he permit revisions agreed to by

Miromar are supported by the evidence and may be incorporated

into the permit.

5 7 . District rules and statutory provisions require that

an applicant give reasonable assurance that the conditions for

issuance of a permit have been met. Reasonable assurance

contemplates a substantial likelihood that the project will be

successfully implem ented. Metro. Dade Cnty. v. Coscan Fla.,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). This does not

require an absolute guarantee of compliance with environmental

standards. See, e.g. , Save Our Suwannee, Inc. v. Dep't of

Envtl. Prot. , Case Nos. 95 - 3899 and 95 - 3900 (Fla. DOAH Dec. 22,

1995; Fla. DEP Feb. 5, 1996). Simply raising concerns or even

informed speculation about what might occur is not enough to

carry the challenger's burden. See Chipola Basin Prot. Grp.,

Inc. v. Fla. Dep't of Envtl. Reg. , Ca se No. 88 - 3355 (Fla. DOAH

Nov. 14, 1988; Fla. DER Dec. 30, 1988).

5 8 . As previously found, by a preponderance of the

evidence, Miromar has provided reasonable assurance that the

proposed activity , as revised, will satisfy all ERP criteria and

will not be contrary to the public interest.

5 9 . As previously found, the Phase IV project , as revised,

is a minor modification to the conceptual permit and is

consistent with all applicable terms and conditions.

60 . In summary, Alico has failed to meet its burd en of

proving that the permit should not be issued , as revised.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the S outh Florida Water Management

District enter a final order approving Miromar's appl ication, as

revised, for a permit modification , subject to the following

additional conditions:

1. That the plans, drawings, and specifications submitted

with the June 8 letter that appear in Joint Exhibit JA - 1, pages

244 - 53, be used as Exhibit 2.0 of t he permit.

2. That the water quality calculations submitted with the

June 8 letter that appear in Joint Exhibit JA - 1, pages 254 - 57,

be used as Exhibit 2.3 of the permit.

3 . That Special Conditions 2, 10, 11, and 13 through 17 be

revised or eliminated to remove obsolete language relating to

the removal of the boat docks and boat ramp .

4 . That Special Condition 10 be revised to require that

all construction, including the removal of the boat ramp and

replacement of Control Structure No. 3 , be conducted us ing BMPs.

5 . That a new special condition be added to reflect that

the construction and operation of docks will not be authorized

by the permit.

6 . That a new special condition be added with new Tabular

Lot Grading Revisions and a revised Typical Lot Gra ding Detail

and address the following: the project shall be constructed to

ensure that stormwater from the project, except stormwater from

within the LME , is routed to the stormwater treatment system

prior to discharge to Lake 5/6; th e lot grading on all lots

shall be in accordance with the revised lot grading to reflect

the high point of the lots located adjacent to the LME to ensure

that runoff from the lots is directed to Lakes 1 and 3; that the

revised lot grading require the installation of six - inch

s econdary drainage pipe s ; and that roof gutters be installed on

all roofs to ensure that runoff from the residential lots is

directed to the stormwater treatment system .

7 . That a new special condition be added to address

unsuitable soils encountered duri ng construction and to ensure

that they are removed and disposed of in an appropriate manner.

8 . That Special Condition 3 , relating to discharge

facilities, be revised to reflect that a 3.7 - inch circular

orifice will be installed in Sub - Basins 1 and 3 , rather than a

four - inch orifice shown in the existing plans .

DONE AND ENTERED this 27th day of January, 2016, i n

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

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 27th day of January, 2016.

COPIES FUR NISHED:

Peter Antonacci , Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 334 0 6 - 3007

(eServed)

Kevin S. Hennessy, Esquire

Lewis Longman & Walker, P.A.

Suite 620

101 Riverfront Boulevard

Bradenton, Fl orida 3 4205 - 8841

(eServed)

Brian J. Accardo , General Counsel

S outh Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 334 0 6 - 3007

(eServed)

Keith L. Williams, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 334 0 6 - 3007

(eServed)

Martin L. Steinberg, Esquire

Hogan Lovells US, LLP

Suite 2700

600 Brickell Avenue

Miami, Florida 3 3 1 31 - 3085

(eServed)

Timothy J . Perry, Esquire

Oertel, Fernandez,

Bryant & Atkinson, P.A.

Post Office Box 1 110

Tallahassee, Florida 32302 - 1110

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.