83-001913 Gulf Hydro-Farms, Inc. vs. Harper Brothers, Inc., And South Florida Water Management District Status: Closed Recommended Order on Monday, August 20, 1984.

Summary: Issue surface water permit for mining operation subject to conditions in the Recommended Order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GULF HYDRO-FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1913

)

HARPER BROTHERS, INC., and )

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael

Ruff, duly designated Hearing Officer of the Division of Administrative

Hearings, on March 13, 1984, in Fort Myers, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: W. E. Connery

Gulf Hydro-Farms, Inc.

Post Office Box 148

Estero, Florida 33928

For Respondent, John A. Noland, Esquire

Harper Brothers, Post Office Box 280

Inc. Fort Myers, Florida 33902

For Respondent, Michael S. Tammaro, Esquire

South Florida Water South Florida Water

Management District: Management District

Post Office Box "V"

West Palm Beach, Florida 33402-4238

This cause arose upon an application for a surface water management permit

filed by Harper Brothers, Inc., seeking authorization for the construction and

operation of a surface water management system from the Respondent, South

Florida Water Management District (SFWMD) for a project known as "Green Meadow

Mine." The application is for authorization to construct and operate a surface

water management system serving the 405 acre existing mining operation. The

system will consist of dykes, pumps, culverts, a weir structure and a 155-acre

water retention area. The project is located in all or parts of Sections 2 and

3, Townships 45 and 46 South, Range 26 East, Lee County, Florida. The existing

mining operation operates under Permit No. 36-00260-W issued to Harper Brothers,

Inc., on September 10, 1981, and reissued August 12, 1983, which was designed

and is operated to retain all of the dewatering discharges (water pumped out of

the active mine pit) in an on-site retention area (except that water pumped for

use on Harper Brothers farm operation for irrigation).

Upon receipt of the application, an extensive review of the information

submitted as part of the application was conducted by the Respondent SFWMD's

staff with the ultimate result that notice of intent to issue the surface water

management permit sought herein was served with certain conditions and addenda

effective June 3, 1983. Petitioner Dale Rickards, by petition of June 7, 1983,

requested a formal proceeding on the permit application and Petitioner Gulf

Hydro-Farms, Inc., requested a formal hearing on the application by petition

dated June 6, 1983. Lee County had already requested a formal proceeding.

Lee County withdrew its petition on June 9, 1983, and Dale Rickards filed a

notice of voluntary dismissal and was dismissed with prejudice on August 29,

1983. By order of January 16, 1984, after the case had already been set for

hearing previously and continued by agreement of the parties, Chris and Susan

Harrington were permitted to intervene on behalf of the Petitioner. The case

was again set for hearing on January 16, 1984, but by agreement of the parties

was continued once again to the ultimate hearing date.

At the hearing, the Petitioner, Gulf Hydro-Farms, Inc., called two

witnesses. The Respondent Harper Brothers, Inc., called four witnesses and the

Respondent SFWMD called one witness, as did the Intervenor. The Petitioner

presented Exhibits A through F, all of which were admitted save Exhibit D.

Intervenor's Exhibit G-1 was admitted into evidence. Respondent Harper Brothers

submitted eight exhibits, all of which were admitted into evidence, and the

Respondent SFWMD submitted Exhibits 9, 10 and 11 which were admitted.

Petitioner's witness Ronald C. Bruns was accepted as an expert witness in the

field of civil engineering and surface water management engineering and "the

district's design criteria." Respondent Harper Brothers' witness Dennis Roza,

was accepted as an expert in civil engineering. Harper Brothers' witness Scott

Glaubitz was accepted as an expert in civil engineering and water resources

engineering. Respondent Harper Brothers' witness Thomas M. Missimer was

accepted as an expert witness in the field of hydrology and water quality, and

Rebecca Serra, a witness for South Florida Water Management District as well as

Respondent Harper Brothers, Inc., was accepted as an expert-in the field of

surface water management design, surface water management permitting criteria,

hydrology and hydraulics.

At the conclusion of the proceeding, the parties requested a transcript of

the proceeding and an extended briefing schedule, simultaneously waiving the 30-

day requirement for rendition of the Recommended Order contained in Rule 28-

5.402, Florida Administrative Code. Proposed findings of fact and conclusions

of law and memoranda were timely submitted.

Prior to the hearing, the issues to be resolved were substantially narrowed

and all parties entered into a prehearing stipulation which was filed prior to

hearing. The ultimate issue to be resolved concerns whether the surface water

management permit should be granted to Harper Brothers, Inc., pursuant to Rule

40E-4.301, Florida Administrative Code. The specific issues which remained to

be resolved at the outset of the hearing were stipulated to be as follows:

1) Whether reasonable assurances have been

given that post-development discharges off-

site will not exceed the pre-development

water discharge to any significant degree, so

as to prevent additional flooding to the

access road to Petitioner's property.

2) Whether reasonable assurances have been

given that historical drainage patterns will

not be significantly altered by development

of Respondent Harper Brothers, Inc.'s

property so as to cause additional flooding

to Petitioner's access road.

3) Whether reasonable assurances have been

given that commingling of dewatering water

and storm water discharges in the retention

area will not alter the pH of the receiving

waters of "no-name" slough, when such com-

mingled water is discharged off-site, to

such an extent as to violate water quality

rules of Chapter 17-3, Florida Administra-

tive Code.

FINDINGS OF FACT

1. The Respondent Harper Brothers, Inc., operates a farming and limestone

mining operation in Lee County, Florida. It has filed a surface water

management permit application for a project to be operated as an adjunct to the

mining operation at Green Meadows Mine owned by Harper Brothers. The Respondent

Harper Brothers retained consultants in the general fields of engineering,

hydrology, surface water management and hydraulics to assist in the formulation

of a surface water management plan for the development and operation of their

mining site. As a culmination of this effort, Respondent Harper Brothers filed

its application for a surface water management system, and permit therefor, with

the district. The SFWMD (District), upon receiving applications for surface

water management systems and related permits evaluates water quantity, quality

and various environmental concerns related to water resources mandated by

Chapter 373, Florida Statutes, Chapter 40E, Florida Administrative Code and

Chapter 17-3, Florida Administrative Code. Such an application must meet

district criteria contained in the statutes and rules in order for the surface

water management permit to be issued. The district's staff makes a

recommendation to its governing board for approval or denial of such permits,

and often with related conditions attached. In the instant case, after review

of the various water quality and environmental criteria, the recommendation of

the governing board of the agency was for approval of the permit with certain

conditions.

THE PROJECT

2. The project which is the subject matter of this proceeding is a rock

mining operation for the mining of limestone in Lee County, Florida. The

application is for the construction and operation of a surface water management

system to serve a 405-acre mining operation which, in essence, involves the

management of the water produced by "de-watering," or pumping-out of the active

rock pit, through use of a retention area, dykes, pumps, culverts and a weir

structure; with a view toward keeping the water pumped from the pit (dewatering

water), and stormwaters which fall on the site, contained in a retention area

which has been designed to retain all the dewatering discharge. The only water

discharge envisioned off the site represents the volume of stormwater which

falls thereon. The stormwater which would be discharged off the site is that

water which actually falls as rain onto the retention area as well as stormwater

that is pumped into the retention area from the pit through the use of the two

existing dewatering pumps.

3. During excavation of the rock pit, water is discharged from the pit

into the on-site retention area through use of these two pumps. An existing

weir structure allows some water from the retention area to flow through a ditch

to a small lake on the Respondent Harper Brothers' property. Water from the

lake is used at the rock mine and some existing farmland of Harper Brothers is

supplied irrigation water from it. At present, some farmland is supplied

irrigation water through a pump from the retention area and some receives

irrigation from the mine pit itself through another pump. The remaining water

discharged from the mine pit is held in the retention area where it infiltrates

into the ground.

4. The retention area will be surrounded by 3.5-foot high by 12-foot wide

dykes. Along the south side of the retention area a double dyke system is

proposed. The outer dyke will also be utilized as a road and varies from three

to four feet in height with a top width of 36 feet, which will be paved.

5. Stormwater discharged from the retention area would flow through an

outfall structure located at a crest elevation of 26.75 feet, National Geodetic

Vertical Datum (NGVD). The controlled elevation in the retention area is 26.3

feet NGVD which is maintained by a 3.83-foot wide "bleeder notch." Discharge

from this structure would then be routed westward between double dykes under the

Harper Brothers' "north-south road" down a swale on the north side of its

entrance road to "no-name" slough, the ultimate "receiving waters."

6. It was established by expert witness Missimer, for Respondent Harper

Brothers, that the dewatering discharge which would be held in the retention

area will infiltrate into the ground at a rate of approximately 43,000 gallons

per day per acre per a one-foot elevation in water level. The rate of

infiltration in the ground is directly proportional to the "head" increase so

that for a two-foot water level with the resulting increased pressure or "head,"

the infiltration rate would be 86,000 gallons per day per acre. Based on the

presently permitted maximum monthly withdrawal rate, at a point of equilibrium

would be reached at a water depth in the retention area of 1.3 feet, whereby the

rate of water pumped into the retention area equals the rate of infiltration

into the ground without considering additionally any evaporation into the

atmosphere. Thus, the bleeder notch would be set at the above elevation so that

all dewatering discharges from the mine (which may contain rock and other

sediments) are effectively retained on site.

PRE-DEVELOPMENT VS. POST-DEVELOPMENT DISCHARGES

7. The SF design criteria contained in Chapter 40E, Florida Administrative

Code, the applicability of which is not in dispute in this proceeding, provides

that the volume of stormwater discharged from such a project cannot exceed the

volume of such discharges from the same surface area in its pre-development

condition. The development referred to in this instance is, of course, the

development of the mine and the related retention area and other water

management installations or "improvements."

8. Expert witnesses Glaubitz and Serra testifying for the Respondent

Harper Brothers and SFWMD established that the quantity of pre-development

discharge from the subject site or surface area, was calculated based upon a

"design storm event." This means that the pre-development discharge from the

Harper Brothers' mine site was calculated, based upon reviews of the watershed

boundary, the slope, the vegetation types, and the hydrologic length of the

watershed in the geographical area, as well as through the use of aerial

photography and U.S. Geological Survey maps, to show the amounts of surface and

stormwaters discharged from this site, or its pre-development surface area,

during a 25-year, 3-day duration storm event, meaning a storm lasting for a

duration of three days of rain of a severity that has been experienced,

according to meteorological records, an average of once in 25 years in the

subject geographical area. Based upon these calculations of pre-development

discharge rate or volume during a 25-year, 3-day storm event, the pre-

development discharge from the Harper Brothers' mine site was calculated to be a

volume of 10 cubic feet of water per second (cfs).

9. "Post-development discharge" is the rate of discharge taking into

account the same 25-year, 3-day storm event, which is allowed to discharge off

the project site after development is completed. The calculation of post-

development discharge was computed by taking into account such factors as soil

storage capability, stage discharge and calculation of the amount of retention

or detention of storm water required on the site. Thus, the calculated post-

development discharge of stormwater from the site as it is proposed to be

designed, is nine cubic feet per second during such a 25-year, 3-day severe

storm, which capability is designed into the proposed project. Thus, the post-

development discharge of stormwater off the project site does not exceed, and in

fact is less than, the pre-development discharge of stormwater from the site.

10. Included within the calculations by these two experts, concerning

post-development volume of stormwater to be discharged, is an analysis of the

quantity of water to be retained in the retention area of the proposed project.

The discharge from the retention area is controlled by the above-mentioned weir

and bleeder notch. The retention area proposed by the applicant is to be used

both for discharge of dewatering water from the mine pit (under the previously

issued industrial water permit) as well as for retention of stormwater. This

weir and bleeder notch is designed to be at an elevation which only allows

discharge of a volume of water representing the volume of stormwater entering

the retention area over a given period of time, and not the dewatering water

from the site, which may contain rock, dust in suspension, and other sediments.

The previous permit granted to the applicant, as well as the permit sought in

this proceeding, would require (as all parties agree) that the dewatering volume

of water, representing the water pumped from the mine pit, will totally remain

on the site. The project as designed is reasonably assured to be capable of

retaining all such dewatering mine pit water on-site.

11. One critical factor considered in determining the design and site for

the retention area (155 acres) and in setting the bleeder notch elevation for

discharge of stormwater volume, is the infiltration rate from the retention area

into the ground beneath it. The Respondent Harper Brothers established (through

these uncontradicted expert witnesses) that the infiltration rate is 43,000

gallons per day per acre of the retention area for a one-foot elevation of water

in that retention area. One of the factors computed into the infiltration rate

calculation is the "transmissivity rate." The transmissivity rate is 200,000

gallons per day per foot in the shallow or surface aquifer at the project site.

Petitioner's expert, Mr. Bruns, conceded that if that rate is correct, as it was

established to be, that the post-development volume of discharge leaving the

project site would not exceed the pre-development volume of discharge, if the

maximum pumpage rate into the retention area from the pit did not exceed 8.5

million gallons per day, and it is so found. Parenthetically, it should be

noted that the Petitioner presented no testimony of its own concerning

infiltration rates or transmissivity rates. Neither did the Petitioner's expert

Mr. Bruns make any calculations of quantity of discharge from the site in either

a pre-development condition or post-development condition, nor was a water

management or hydrologic study of the drainage basin (approximately 6 square

miles) made by Petitioner's expert witness, to assist in analyzing quantity of

discharge.

12. Under certain hypothetical conditions it would be possible for

dewatering discharge water from the mine, as a volume of water, to be

discharged, commingled with stormwater discharge, from the retention area.

Thomas Missimer, testifying as an expert witness in the fields of hydrology and

water quality for Harper Brothers, was uncontradicted. His studies and

calculatiops in evidence established that, with regard to the infiltration rate

downward into the soil under the retention area, and the amount of water pumped

into the retention area, that equilibrium is reached when pumping into the

retention area reaches 8.5 million gallons per day. That is, approximately 8.5

million gallons per day infiltrate downward into the soil and thus leave the

retention area and thus an 8.5 million gallon pumpage rate per day would result

in a static water level in the retention area, aside from evaporation. If the

Respondent pumped in excess of this figure, which might be possible under its

present mine dewatering industrial use permit, then the pumpage figure might

exceed the equilibrium figure and cause the volume of water discharged off the

site to exceed that volume which only represents stormwater. Accordingly, the

parties stipulated that the maximum daily pumpage rate of 8.5 million gallons

per day would be included as a condition in the permit, if it were issued to the

Respondent, such that, based upon the uncontradicted infiltration data, that the

limitation to a maximum pumpage rate into the retention area of 8.5 million

gallons per day from the mine pit, would be permissible. In view of this

stipulation, Petitioner withdrew its contention that the post-development volume

of discharge water leaving the site would exceed the pre-development volume of

discharge. It was thus shown that at the maximum pumpage rate of 8.5 million

gallons per day no mine dewatering discharge (as a volume of water) will leave

the retention area.

NON-ALTERATION OF HISTORICAL DRAINAGE PATTERNS

13. The Petitioners also contend that the supposed alteration of

historical drainage patterns by this development at the site will cause

additional flooding to the Petitioner's access road to their property (residence

and nursery) by the road known as Mallard Lane. In that connection, the

historic pattern of stormwater discharge off the project site or its

geographical area, is figured into the analysis of pre-development water volume

discharge versus post-development discharge. This project, like others of its

type, is mandated by the rules at issue to not alter the pre-development

patterns of water discharge off the site area so as to adversely affect the

property and landowners off the site. Although the pre-development discharge is

generally observed and calculated by looking at a site before the development

involved in a permit application takes place, in the instant case, Harper

Brothers, Inc., by the authority of its previously issued dewatering and

industrial water use permit had already initiated its mining operation and so

pre-development conditions as they relate to this permit were not directly,

physically observable. Accordingly, a hydrologic study of the drainage basin in

which this project is located was performed, and, in conjunction with the use of

aerial photography and U.S.G.S. quadrangle maps, the perimeter of the basin was

determined and an analysis of the historical pattern of flow in the drainage

basin was done.

14. The general flow of water in the drainage basin historically is from

northeast to southwest, with an ultimate discharge into the "no-name" slough, a

"cypress head" or slough which generally flows in a westerly and southwesterly

direction from the area immediately adjacent to the project site. Internally

within this drainage basin, some old pre-development north/south dykes have

blocked some of the westerly flow which historically existed at the site,

thereby causing some of the water to flow in a northwesterly direction until it

reaches the northern end of the north/south dykes, thence returning to the

generally southwesterly drainage pattern, ultimately ending up in the slough

system. A small area of farm fields was located north of the east/west access

road to the site, and southerly of an existing east/west line of farm dykes, and

may have drained in a southerly direction before development. There is

currently no information and no evidence of record concerning how this farm

field area was drained. The drainage from this area now, however, is

insignificant and is calculated at approximately one cubic foot per second as a

maximum rate. As the calculated post-development discharge from this project

site is approximately 9 cubic feet per second, even if it be assumed that the

drainage from the old farm field should be added to the post-development

discharge rate from the project site itself, such an addition would only equal

and not exceed the historic, pre-development discharge rate of ten cubic feet

per second. The flows in a southerly direction are currently blocked by the

east/west access road to the Harper Brothers' site, used by Harper Brothers. In

a predevelopment condition however, the same situation existed since the

southerly flow was similarly blocked by farm dykes which existed in the pre-

development condition.

15. The proposed facility is designed to have stormwater which falls on

the entire project site to be pumped into the retention area. The volume of

stormwater permitted to be discharged will discharge from the retention area via

the above-mentioned outfall structure and will be routed westward through the

double-dyke system down a drainage swale on the north side of the entrance road,

and ultimately into the no-name slough. Thus, the historic drainage pattern of

the basin from the northeast to the southwest will not be significantly altered

by the project as designed and proposed. The project generally preserves this

historic drainage pattern by discharging the drainage within the basin into the

"no-name" slough as occurred in the pre-development condition which, when the

above-described pre-development and post-development discharge rates are

compared reveals that there will be no adverse alteration in terms of either a

dearth of or excess of water supply to this natural slough system.

16. The Petitioner's access road, North Mallard Lane, running from north

to south, accessing Petitioner's property west of the project site, is indeed

subject to inundation, but was subject to such inundation in the pre-development

condition of the project site. This is because the slough crosses this access

road. Since the post-development condition does not alter the historic patterns

of drainage to any significant degree, and does not represent an alteration in

the volume of discharge from the project site area over that in the historic,

pre-development condition, no additional flooding to the Petitioner's access

road will be caused as a result of the project installation and operation. The

flooding being caused to the Petitioner's access road, indeed was shown to be

related in part to culverts of insufficient size installed by Lee County, so

that water tends to stand on the road surface as opposed to draining under and

away from it.

NON-ALTERATION OF THE pH OF RECEIVING WATERS

17. It is undisputed that the subject project, like all such projects,

under the permitting authority of SFWMD, must meet state water quality criteria

contained in Chapter 17-3, Florida Administrative Code. The design of such a

surface water management system must include "best management practices" (BMP's)

in order to satisfy the district's design criteria. BMP's are techniques which

are incorporated into the design of such a system to enhance water quality such

as the use of swales, retention ponds, and gravity structures. Given that the

project will utilize a retention area, grassed swales and other well accepted

water management structures, the design was shown to comport with "best

management practices."

18. Water quality measurements for the only water quality parameter in

dispute, that of pH, were taken on the project site using standard, accepted

scientific methods and U.S. Geological Survey Water Quality Standard sampling

techniques. The tests revealed a pH in the retention area itself of 7.91 pH

units. The pH in the pit area was 7.8 pH units and in the off-site water in the

slough, the pH was 7.3 units. The water discharge from the retention area would

be a combination of stormwater (rain water) which is approximately 6 pH units in

the geographical area involved, and the retention area water at approximately

7.8 pH units. The precise pH of this discharge water would depend on the

quantities of water from each source, but was shown to be almost neutral or

approximately at a pH of 7. Thus, the discharge from the retention area of the

commingled dewatering and stormwater, if such occurs, will not alter the

receiving waters one full pH unit. Upon issuance of the permit, the applicant

will still have to comply on a continuing basis with the water quality

parameters of Chapter 17-3, Florida Administrative Code, and the staff of SFWMD

will continue water quality monitoring after the permit is issued. There has

thus been no showing that commingling of dewatering water and stormwater in the

retention area and the discharge of such commingled waters to the receiving

waters of "no-name" slough would affect the pH of that receiving water in a

manner to exceed existing, permissible pH parameters and adversely affect water

quality. Expert witness Serra testifying for the district as well as for Harper

Brothers, has studied similar mining operations. Such operations, utilizing

similar water management procedures, have not caused any water quality

violations related to discharges of commingled dewatering and stormwater,

including no violations of the pH parameters. Finally, near the conclusion of

the proceeding, Petitioner, in effect, abandoned its dispute regarding the issue

of compliance with the pH water quality parameter.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Subsection 120.57(1),

Florida Statutes (1983).

20. Section 373.413(1) and (2), Florida Statutes, provides as follows:

Except for the exemptions set forth herein,

the governing board or the department may

require such permits and impose such reason-

able conditions as are necessary to assure

that the construction or alteration of any

dam, impoundment, reservoir, appurtenant

work, or works will not be harmful to the

water resources of the district. The depart-

ment or the governing board may delineate

areas within the district wherein permits

may be required.

A person proposing to construct or alter a

alter a dam, impoundment, reservoir,

appurtenant work, or works subject to such

permit shall apply to the governing board or

department for a permit authorizing such

construction or alteration. . . .

21. The project to be constructed and operated, which is the subject

matter of this permit application, clearly falls within the ambient of this

section delineating projects for which surface water management permits are

required. The SFWMD has authority to adopt rules and regulations implementing

and supporting its responsibilities to implement this and other portions of Part

4, Chapter 373, Florida Statutes, related to the management and storage of

surface waters under authority of Section 373.044, Florida Statutes (1983). In

furtherance of the statutory permitting authority referenced in Part 4 of

Chapter 373, Florida Statutes and the rulemaking authority embodied in the

statutory section cited last above, the SFWMD has adopted Chapter 40E-4, Florida

Administrative Code. Rule 40E-4.091, Florida Administrative Code, adopts the

publication of the district entitled "Basis of Review for Surface Water

Management Permit Applications Within the South Florida Water Management

District" by reference.

22. Rule 40E-3.01(1), Florida Administrative Code, requires an applicant

for a surface water management permit to provide reasonable assurances that the

surface water management system:

. . . (b) will not cause adverse water

quality and quantity impacts on receiving

waters and adjacent lands regulated pur-

suant to Chapter 373, Florida Statutes,

(c) will not cause discharges which result

in any violation in surface waters of the

State, of the standards and criteria of

Chapter 17-3,

(d) will not cause adverse impacts on

surface and ground water levels and flows,

(e) will not cause adverse environmental

impacts,

* * *

(n) will meet the general and specific

criteria in the document described in

paragraph 40E-091(1)(a).

Because of the above three issues remaining in this proceeding, the above-quoted

portions of Rule 40E-4.301, Florida Administrative Code are the only portions of

the conditions for issuance of permits contained in that rule which remain at

issue in this case, and which relate to the stipulated issues delineated above.

The document referred to in paragraph (n) quoted above refers to the "basis of

review for surface water management permit applications . . ." referred to in

Rule 40E-4.091(1)(a). SFWMD has adopted specific criteria for determining water

quantity impacts caused by proposed water management systems in that "basis of

review for surface water management applications at paragraph 3.2.1.2. of the

"Basis of Review" it is provided:

Discharge - off-site discharge is limited to

amounts which will not cause additional

adverse off-site impact. These amounts are:

a. Historic discharges, or

b. Amounts determined in previous district

permit actions, or

c. Amounts specified in district criteria

Unless otherwise specified by previous dis-

trict permit, district criteria or local

government, a storm event of three day dura-

tion and 25 year return frequency shall be

used in computing off-site discharge.

In this proceeding the parties have agreed that water quantity impacts are

limited to the historic discharge criteria in subparagraph a. quoted above.

Historic discharges mean the predevelopment discharges as they existed before

the mine was developed by Harper Brothers. The post-development discharge off

the site cannot exceed the pre-development discharge. Thus, post-development

discharge is the rate of discharge during the 25-year, 3-day storm event which

is allowed to discharge off the project site once it is-completed. The

calculated post-development discharge of stormwater from the site as designed

would be, as found above, 9 cubic feet per second during a 25-year, 3-day design

storm event, thus it has been clearly established and affirmative reasonable

assurances have been provided that the post-development discharge will not

exceed the pre-development discharge of stormwater from the site, and indeed,

will actually be approximately one cubic foot per second less discharge than

existed in the pre-development stage of the subject geographical area.

23. Included within the analysis of historic discharges is the analysis of

the historic pattern of that discharge of stormwater as that relates to the

second issue stipulated by the parties to be involved in this proceeding and

discussed above in the Findings of Fact. There is no particular point in time

which was referred to as the "historic" condition, as conditions gradually

change over the years. The historic condition referred to in this proceeding

concerning the geographical area involved in the application means the permanent

features of the land, such as old farm dykes and existing topography which were

essentially permanent in nature and which predated the development of the Green

Meadows Mine. The evidence adduced by both Harper Brothers and SFWMD was

unrefuted and clearly establishes reasonable assurance that historic drainage

patterns of discharge will not be significantly altered by the proposed project.

The general flow in the drainage basin was shown to be from northeast to

southwest, ultimately discharging in "no- name" slough. The facilities as

proposed call for stormwater falling on the project site to be pumped into the

retention area. The volume of stormwater permitted to be discharged will

discharge from the retention area through an outfall structure, and will be

routed westward between a double dyke system down a swale on the north side of

Harper Brothers' east--west entrance road and into the "no-name" slough. Flow

in a southerly direction is currently blocked by the east-west access road of

Harper Brothers. In pre-development historical conditions however, the flow in

a southerly direction was also blocked by farm dykes which existed in the pre-

development condition, so that no net change in flow patterns over that pre-

development condition will be effected by this project. The general historic

drainage pattern of the basin from northeast to southwest will thus not be

significantly altered and historic drainage patterns characterized by discharge

to "no-name" slough will be preserved so that this criteria in the "Basis of

Review," which in turn is incorporated by reference in the above rule, has been

satisfied.

24. There remains to be discussed the issue of water quality, which has

been stipulated by the parties to only involve the issue of whether the pH of

the receiving waters of the "no-name" slough will be significantly altered by

the discharge attendant to this project. Section 3.2.2.1 of the "Basis of

Review" provides as to water quality:

State Standards - projects shall be designed

so that discharges will meet state water

quality standards, as set forth in Chapter 17-3.

25. Regarding the issue of whether any adverse impact on the receiving

waters of "no-name" slough might occur, in terms of pH, Rule 17-3.121(22),

Florida Administrative Code, provides:

* * *

pH - pH of receiving waters shall not be

caused to vary more than one (1.0) unit

above or below normal pH of predominantly

fresh waters as defined in section 17-3.021,

F.A.C. . . . The lower value shall not be

less than six (6.0) in predominantly fresh

waters or less than six and one-half (6.5)

in predominantly marine waters and the upper

value not more than eight and one half (8.5).

The evidence adduced by Harper Brothers, Inc., as well as the SFWMD established

affirmative assurances that the pH standard embodied in the above rule will not

be violated by the quality of the water which may discharge into "no-name"

slough, the receiving surface waters of the state involved herein. Indeed, the

Petitioner stipulated that it abandoned the issue raised relating to alteration

of the pH of the waters in "no-name" slough provided the possibility of

enforcement against future water quality violations remains an option for the

district, which, of course, under the rules (40E-4.341, Florida Administrative

Code and 40E-1.609, Florida Administrative Code) clearly is within the authority

of the district. An ongoing monitoring of the discharge off the Harper

Brothers' site can, and should be accomplished. In that connection, the staff

report of the district staff, in evidence as Harper Brothers' Exhibit No. 2

contains 18 special and limiting conditions. The permit applicant has agreed to

accept all of those special and limiting conditions as part of its surface water

management permit should it be issued, and those conditions certainly should be

attached to a grant of the permit sought.

26. In summary, with the imposition of the special and limiting conditions

contained in Exhibit 2, which are incorporated by reference herein, together

with two other special conditions delineated below, reasonable assurances that

the surface water management system proposed by Harper Brothers, Inc., meets the

requirements of Rule 40E-4.301, Florida Administrative Code, have clearly been

provided. Specifically, reasonable assurances have been provided that the

stormwater discharge from the Harper Brothers, Inc., site will not cause the

adverse water quantity or quality impacts off the site which are discussed in

more detail above. The special, additional conditions which should be imposed

upon a grant of the permit are as follows:

1. Pumpage from the pit into the retention

area shall be limited to 8.5 million gallons

per day.

2. In furtherance of special condition No. 2

regarding water quality and water quality data

monitoring delineated in Exhibit 2, and in

furtherance of Rule 40E-4.381(b), water quality

data for the water discharged from the permit-

tee's property shall be submitted to the

district on a quarterly basis, with those

parameters monitored and reported to the

district which are depicted in special

condition No. 2 of Harper Brothers'

Exhibit No. 2.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law,

the candor and demeanor of the witnesses, the evidence of record and the

pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That a Final Order be entered by the South Florida Water Management

District authorizing issuance of a surface water management permit to the

applicant herein for the proposed surface water management system, imposing upon

the applicants the limiting and special conditions enumerated in the district

staff report depicted in Exhibit 2 and incorporated by reference herein, and

additionally, those two special conditions set forth immediately above.

DONE and ENTERED this 17th day of August 1984, in Tallahassee, Florida.

___________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 17th day of August 1984.

COPIES FURNISHED:

W. E. Connery

Gulf Hydro-Farms, Inc.

Post Office Boa 148

Estero, Florida 33928

John A. Noland, Esquire

Post Office Box 280

Fort Myers, Florida 33902

Michael S. Tammaro, Esquire

South Florida Water Management District

Post Office Box "V"

West Palm Beach, Florida 33403-4238

John R. Maloy, Executive Director

South Florida Water Management District

Post Office Box "V"

West Palm Beach, Florida 33402