89-002197 Canoe Creek Property Owners Association, Inc., Et Al vs. Westwood Country Estates And South Florida Water Management District Status: Closed Recommended Order on Tuesday, December 5, 1989.

Summary: Modification to surface water management system shown to meet all pertinent permitting criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CANOE CREEK PROPERTY OWNERS )

PRELIMINARY STATEMENT

This proceeding began on October 14, 1988, when Westwood Country Estates,

Inc. (Applicant), filed an application with South Florida Water Management

District (SFWMD) for the modification of Permit No. 43-00155-S, a surface water

management permit that had been issued by SFWMD in 1980.

Applicant is the owner of Westwood Country Estates ( Westwood), a proposed

82.1 acre residential development in northwest Martin County, Florida. Permit

No. 43-00155-S is the existing surface water management permit for Westwood.

Canoe Creek subdivision is an existing 85.6 acre residential subdivision

located east to and adjacent to Westwood. Petitioners, who object to the

modification to the Westwood permit, are the Canoe Creek Property Owners

Association and individual property owners in the Canoe Creek subdivision.

Permit No. 43-00135-S issued by SFWMD in 1979 and modified in 1981, is the

existing surface water management permit for the Canoe Creek subdivision.

In 1979, the developers of Canoe Creek subdivision granted a drainage

easement to the owners of the Westwood property from the common boundary of the

two properties, through a swale, and into the Canoe Creek subdivision drainage

system. Since 1980, Permit No. 43-00155-S has authorized the discharge of

Westwood's surface water drainage into Canoe Creek subdivision's surface water

management system.

Applicant seeks to modify Permit No. 43-00155-S by (1) increasing the off-

site tributary area which drains on to Westwood from 4 acres to 56 acres, (2)

raising the catch basin which receives the flow from the off-site area on to

Westwood by six inches, and (3) lowering the structure which regulates flow from

Westwood to the Canoe Creek surface water management system by three-tenths of

one foot. The application was supported by an analysis which detailed several

deficiencies in the surface water management system permitted for Canoe Creek by

Permit 43-00135-S and which recommended certain improvements or repairs to the

Canoe Creek subdivision surface water management system.

On March 24, 1989, the SFWMD staff filed a report which recommended

approval of the modification application subject to certain specified

conditions. Included among the special requirements for approval of the

modifications requested by Westwood was the condition that the improvements to

the Canoe Creek surface water management system recommended by Applicant be

implemented. These improvements, consisting of the regrading of existing swales

and the repair or replacement of culverts and weirs, will require a separate

modification to Permit 43-00135-S.

After the favorable staff report was made, Petitioners objected to the

granting of the modifications to Permit 43-00155-S and requested a formal

administrative hearing. This proceeding followed.

At the formal hearing, Petitioners were represented by their qualified

representative, Don Mooers, an attorney who is not a member of the Florida Bar,

and by David Chestnut, a member of the Florida Bar who had been retained to

assist Mr. Mooers with procedural matters.

At the formal hearing, Applicant presented the testimony of three

witnesses, Howard Searcy, Richard Bouchard, and Ross McWilliams. Mr. Searcy, a

professional engineer, prepared the application for modification and was

accepted as an expert in civil engineering, hydrology, and water management

permitting. Mr. Bouchard, the supervising engineer with SFWMD who processed the

modification application, was accepted as an expert in surface water management

regulation and soil and water engineering as it relates to drainage and site

plan development. Mr. McWilliams was accepted as an expert in biology and water

quality. Applicant introduced 11 documentary exhibits, all of which were

accepted into evidence. SFWMD presented no witnesses and no documentary

evidence. Petitioners presented the testimony of two witnesses, Francisco Perez

and T. Robert Valliant. Mr. Perez is an environmental specialist with the

Florida Department of Environmental Regulation and was accepted as an expert in

compliance and enforcement of DER potable water rules and regulations. Mr.

Valliant is a resident of Canoe Creek subdivision and an individual Petitioner

to these proceedings. Petitioners offered 15 documentary exhibits into evidence

at the hearing, all of which were accepted into evidence. A sixteenth exhibit,

identified as Petitioners' Exhibit 2, was to be filed as a late-filed exhibit,

but it was subsequently withdrawn by Petitioners. At the parties' request,

official recognition was taken of the applicable statutes and regulations

relating to surface water management permitting.

A transcript of the proceedings has been filed. At the request of the

parties, the time for filing post-hearing submissions was set for more than ten

days following the filing of the transcript. Consequently, the parties waived

the requirement that a recommended order be rendered within thirty days after

the transcript is filed. Rule 221-6.6031, Florida Administrative Code. Rulings

on the proposed findings of fact submitted on behalf of Applicant and on behalf

of SFWMD are found in the appendix to this Recommended Order. Petitioners did

not file any proposed findings of fact within the deadline established for the

filing of post-hearing submittals even though this deadline was extended on

Petitioners' motion.

FINDINGS OF FACT

1. All lands pertinent to this proceeding are located in northwestern

Martin County, Florida, within the jurisdiction of the South Florida Water

Management District (SFWMD).

2. Respondent, Westwood Country Estates, Inc. (Applicant), is the owner of

82.1 acres of land that it proposes to develop into a residential subdivision

known as Westwood Country Estates (Westwood). Westwood is adjacent to and west

of Canoe Creek subdivision, an existing residential single family subdivision

consisting of 85.6 acres.

3. The lands constituting Westwood and Canoe Creek subdivision

historically drain in an easterly to southeasterly direction into Bessey Creek

and from Bessey Creek into a major drainage canal maintained by SFWMD referred

to as C-23. The primary drainage for Westwood has historically been across the

lands constituting the Canoe Creek subdivision.

4. Petitioners are the Canoe Creek Property Owners Association, Inc., and

individual property owners in the Canoe Creek subdivision. The primary grounds

for their objections to the modifications are their contentions that the

Westwood modifications would overload the Canoe Creek surface water management

system, thereby flooding streets and homes, damaging septic tanks, and polluting

the wells that serve Canoe Creek subdivision. Petitioners also object to the

repairs and improvements to the Canoe Creek surface water, management system

that are recommended by Applicant and are incorporated as special conditions to

the application.

5. Permit No. 43-00135-S, issued by SFWMD in 1979, as modified by SFWMD in

1981, is the surface water management permit for Canoe Creek subdivision. The

surface water management system for Canoe Creek subdivision consists of drainage

swales, a detention pond, culverts, and weirs. From the detention pond, surface

water drains via grassy swales easterly to a roadside ditch at Murphy Road, then

southerly parallel to Murphy Road into Bessey Creek, which drains into the C-23

canal. Outfall for the Canoe Creek system is authorized at the rate of 21 cubic

feet per second during the applicable 10-year, 3-day design storm.

6. A perpetual easement for utility and drainage purposes was granted on

December 17, 1979, by the owner of the real property that was developed as the

Canoe Creek subdivision, for itself and for its successors and assigns, to the

then owners of the Westwood property, its successors and assigns. This

easement, which is 20 feet in width and 485 feet in length, authorizes the

drainage of water from Westwood into the Canoe Creek surface water management

system. On the common boundary between Canoe Creek subdivision and Westwood

there is a v-notch weir structure which is designed to regulate the outfall from

Westwood to the Canoe Creek system. From that weir structure, the drainage

easement runs easterly to what was in 1979 the Canoe Cheek subdivision area

perimeter ditch and to what is now the Canoe Creek subdivision retention lake.

This grant of easement was recorded in the public records of Martin County,

Florida, on December 17, 1979, in Official Records Book 485, pages 2163-2165.

7. On February 14, 1980, Permit 43-00155-S, a construction and operation

surface water management permit was issued by SFWMD to the owners of Westwood.

The permitted surface water management system for Westwood consists of wetlands

areas, detention areas, drainage swales, culverts, and weirs. Outfall from the

Westwood system is authorized at the rate of 21 cubic feet per second during the

applicable 10-year, 3-day, design storm event. The outfall flows through the

weir structure on the boundary between Westwood and Canoe Creek subdivision,

through the drainage easement, into the Canoe Creek detention pond, and through

the Canoe Creek surface water management system. Ultimate outfall for both the

Westwood system and the Canoe Creek system is through Bessey Creek and the C-23

canal. Modifications to Permit 43-00155-S in 1982 and in 1983 did not alter

Westwood's basic surface water management system. Since 1980, the surface water

management system permitted for Westwood has contemplated that the surface water

outflow would be discharged through the Canoe Creek subdivision surface water

management system and that these surface water management systems be an

integrated system consisting of detention ponds, drainage swales, culverts, and

weirs, with outfall into Bessey Creek and then into the C-23 Canal.

8. In August 1988, an unauthorized water discharge occurred from the

Westwood properties during a heavy storm before the completion of the Westwood

surface water management system. This unauthorized discharge of water occurred

through a breach in the partially completed dike located at the southern

perimeter of Westwood. The breach in the dike on the southern perimeter was

caused, in part, because Westwood was receiving an unauthorized discharge of

water from a 56 acre parcel which adjoins Westwood on its western boundary.

This unauthorized discharge onto Westwood was through a separate breach in the

western perimeter dike. The Notice of Violation, which was issued by SFWMD to

Applicant following this unauthorized discharge, precipitated the application

which is the subject of this proceeding. Since the unauthorized discharge, the

construction of Westwood's surface water management system has been completed.

The perimeter of Westwood has been bermed to prevent unauthorized discharges

from the off-site area.

9. On October 14, 1988, Applicant, pursuant to Chapter 373, Part IV,

Florida Statutes, and the applicable rules found in Chapter 40E-4, Florida

Administrative Code, applied for the modification to Permit 43-00155-S that is

the subject of this proceeding. Howard Searcy, Westwood's consulting engineer,

determined that approximately 56 acres of off-site property to the west of

Westwood was draining onto Westwood and that provision should be made for this

off-site area in Westwood's surface water management system. The modification

process was necessary because the existing permit authorized drainage onto

Westwood from only four of the 56 acres. As permitted by the rules and practice

of SFWMD, the application for modification was submitted in the form of a

letter.

10. The application requested the following modifications to Permit 43-

00155-S:

A. That the tributary off-site area be

increased from 4 acres to 56 acres;

B. That catch basin 23, which receives

the off-site flow from the adjoining

off-site 56 acres, be raised from

elevation 12.0 feet NGVD to elevation

12.5 feet NGVD at the grate;

C. That the elevation of the crest of

the outfall structure between Westwood

and Canoe Creek subdivision be lowered

from 12.1 feet NGVD to elevation 11.8

feet NGVD and that the bleeder of the

structure be lowered from 11.5 feet NGVD

to 11.3 feet NGVD.

11. The request to raise by six inches the catch basin which receives the

flow from the off-site property was made so that more water would be detained on

the off-site property during design storms. The request that the outfall

structure between Westwood and Canoe Creek be lowered was made to authorize an

increase in the peak discharge in a design storm event from the permitted 21

cubic feet per second to the proposed 21.3 cubic feet per second.

12. The data submitted by Westwood in support of its application included

a backwater analysis prepared by Mr. Searcy and his staff. The backwater

analysis is a detailed computer analysis of the Westwood surface water

management system and the effects of the proposed modifications designed by Mr.

Searcy and his engineering staff. The data also contained an analysis of the

Canoe Creek subdivision surface water management system and the effects of the

modifications on that system.

13. The backwater analysis determined that the Canoe Creek subdivision

surface water management system was not operating as designed and that the

system should be improved by regrading existing swales, adding additional

culverts, and modifying existing weirs. Mr. Searcy made the following specific

recommendations for improvements to the Canoe Creek subdivision surface water

management system.

1. Station 0 (southern entrance

road): Replace the existing 24" CMP

culvert with 2 - 30" CMP culverts.

2. Station 7 (main entrance road):

Replace the existing 24" 34" CMP Arch

culvert with 2 - 24" x 35" CMP Arch

culverts. Note: if existing 24" x 34"

CMP Arch culvert is in good condition,

just add 1 - 24" x 35" CMP Arch culvert

at this location.

3. Station 13 ( outfall structure):

Verify that the existing structure was

built as designed and then increase the

weir length to 6.1' at crest elevation

10.25'. The top of this weir structure

should also be increased to elevation

20.0'. [The recommendation that the top

of the weir structure be increased to

elevation 20' was a typographical error.

The correct elevation should be 12'.]

4. Station 13 to 14 (east-west

swale): Regrade the swale bottom to

remove all high point greater than

elevation 8.25'.

5. Station 14 (internal road)

Replace existing 24" x 34" CMP Arch

culvert with 2 - 24" 35" CMP Arch

culverts and lower the invert elevation

to 8.25'. Note: If the existing 24" x

34" CAP Arch culvert is in good

condition, then just add 1 - 24" x 35"

CMP Arch culvert at this location.

6. Station 13 to 19 ( east-west

swale) : Regrade swale bottom starting

at elevation 8.25' at station 15 and

ending with elevation 8.5' at station

19.

7. Station 19 (weir structure):

Increase weir length to the permitted

weir length of 5.0' at the existing weir

crest elevation 10.14'.

14. Without the improvements to the Canoe Creek system recommended by Mr.

Searcy, the Canoe Creek subdivision system will not function as designed and as

permitted.

15. After the initial review of the application the SFWMD requested that

Applicant submit additional information and that it clarify certain items. The

Applicant provided all data and clarifications requested by the SFWMD. The

SFWMD staff thereafter deemed the application complete. The Staff Report

prepared by the SFWMD review team on March 24, 1989, recommended that the

modification to the permit be granted with certain conditions. The conditions

were of two types, limiting conditions, which are standard conditions attached

to most permits, and special conditions, which are conditions unique to this

permit. The special conditions, pertinent to this proceeding, are as follows:

11. Prior to the commencement of

construction of the proposed surface

water management system improvements

within Canoe Creek (Permit No. 43-00135-

S), a permit modification to permit No.

43-00135-S shall be required.

12. This modification is conditioned on

the downstream improvements to the Canoe

Creek outfall system (Table I) being

completed. If the Canoe Creek system is

not improved, Westwood Country Estates,

Inc. shall be required to submit revised

plans and calculations demonstrating an

alternate outfall route.

* * *

16. Any development of the 56-acre off-

site area will require compliance with

an allowable discharge not exceeding 3.4

CFS during the 10-year 3-day design

event.

16. The improvements to the Canoe Creek system required by condition 12

are those conditions recommended by Mr. Searcy and set forth in paragraph 13 of

this Recommended Order. Applicant has accepted the conditions that were

attached by SFWMD to the granting of the proposed modification. As presented at

the formal hearing, the application for modification incorporates the conditions

imposed by SFWMD. The backwater analysis that was prepared by Mr. Searcy

assumed that the improvements he recommended to the Canoe Creek surface water

management system would be made.

17. Westwood has complied, in all material respects, with the SFWMD

permitting rules and regulations and has supplied all information requested of

it by SFWMD. The appropriate employees of SFWMD processed the modification

application in accordance with SFWMD rules. All information deemed pertinent to

the application was assembled, the data was reviewed, and the applicable

permitting files were researched.

18. Applicant has provided reasonable assurances that all permitting

criteria adopted by SFWMD will be met if the conditions attached to the

application are implemented. SFWMD's flooding protection and drainage criteria,

which was of particular concern at the hearing, will be met. There should be no

impact on the level, flow, or quality of groundwater. Water quality standards

adopted by the State of Florida as set out in Chapter 17-3, Florida

Administrative Code, will have been met or exceeded, and there should be no

adverse environmental impacts. The wetlands on the 56 acres of off-site area

will benefit by the additional retention caused by the raising of the level of

Catch Basin #23.

19. The surface water management system, with the modifications proposed

by Applicant, can be effectively operated and maintained. A condition of the

permit is that Applicant form a homeowner's association to take over the

operation and maintenance of the system after development is completed.

20. The approval and implementation of the proposed modifications and

conditions thereto will not adversely affect the public health and safety,

adversely affect the legal rights of others, be harmful to the water resources

of the State, or be contrary to public policy.

21. Petitioners have failed to factually refute Applicant's showing that

it has provided reasonable assurances that all pertinent permitting criteria

adopted by SFWMD will be met if the permit modification, as conditioned, is

approved and implemented.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the

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

Florida Statutes.

23. The scope of this proceeding is limited to the issue of whether the

application for modification of the Westwood surface water management system

complies with the pertinent permitting criteria adopted by South Florida Water

Management District set forth in Rule 40E-4.301, Florida Administrative Code.

Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67, (Fla. 3rd

DCA 1983). All evidence and testimony not related to that criteria is properly

excluded as being irrelevant. Johns-Manville Sales, Corp. v. Janssens, 463

So.2d 242 (Fla. 1st DCA 1984), rev. den. 467 So.2d 999 (1985). See also,

Section 120.58(1)(a), Florida Statutes.

24. Rule 49E-4.301, Florida Administrative Code, provides, in pertinent

part, as follows:

(1) In order to obtain a permit under

this chapter, an applicant must give

reasonable assurances that the surface

water management system:

(a) provides adequate flood

protection and drainage,

(b ) will not cause adverse water

quality and quantity impacts on

receiving waters and adjacent lands

regulated pursuant 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 groundwater levels and

flows,

(e) will not cause adverse

environmental impacts,

(f) can be effectively operated and

maintained,

(g) will not adversely affect public

health and safety,

(h) is consistent with the State

Water Policy, Chapter 17-40, each

(i) for a DRI with a signed

Preliminary Development Agreement with

the Florida Department of Community

Affairs, pursuant to Section 380.06(8),

Florida Statutes, provides a surface

water management system for that portion

of the site approved for development

which is able to operate separately from

the surface water management system for

the balance of the project site and

still meet applicable District criteria,

(j) meets any applicable basin

criteria in Chapter 40E-41,

(k) will not otherwise be harmful to

the water resources of the District, and

will not interfere with the legal rights

of others, as defined in Rule 17-40.070,

(l) is not against public policy,

(m) will meet the general and

specific criteria in the document

described in rule 40R-4.091(1)(a)7

(n ) will meet the criteria for

isolated wetlands, which are found in

Appendix 7 of the document described in

rule 40E-4.091(1)(a) and,

(o) will meet the criteria for above

ground impoundments, which are found in

Appendix 6 of the document described in

rule 40E-4.091(1)(a).

25. Rule 40E-4.381, Florida Administrative Code, authorizes SFWMD to place

both special and standard limiting conditions on a permit, an authority none of

the parties challenge. If the conditions to the application cannot be

implemented, including the recommended modifications to the Canoe Creek surface

water management system, the modifications to the Westwood system cannot be made

without Applicant being required to give additional reasonable assurances that

all permitting criteria will, nevertheless, be met.

26. At the formal hearing, Applicant gave reasonable assurances that all

permitting criteria would be met if the modifications and conditions thereto are

approved and implemented. These reasonable assurances were established by the

engineering designs supported by computer analysis and by the expert testimony

in the areas of civil engineering, hydrology, surface water management

permitting, biology and water quality. This conclusion that all reasonable

assurances had been given was also reached by the staff of SFWMD. SFWMD staff

reviewed the supporting information supplied by Applicant and the information

available to it from its records and determined that reasonable assurances had

been given that, if the conditions imposed on the application are implemented,

all permitting criteria will have been met.

27. Once Applicant presented a prima facie case that reasonable assurances

of all pertinent permitting criteria had been given, the burden of going forward

with the evidence shifted to Petitioners. This prima facie showing was not

negated or otherwise refuted by Petitioners. Florida Department of

Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)

RECOMMENDATION

Based on the foregoing findings of facts and conclusions of law, it is

RECOMMENDED that South Florida Water Management enter a final order which

approves application for the modification of Permit No. 43-00155-S filed by

Westwood Country Estates, Inc., subject to the terms and conditions recommended

by the South Florida Water Management District staff report.

DONE AND ENTERED this 5th day of December, 1989, in Tallahassee, Leon

County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

904/488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of December, 1989.

APPENDIX TO THE RECOMMENDED

ORDER IN CASE NO. 89-2197

The following rulings are made on the findings of fact submitted on behalf

of Westwood Country Estates, Inc.

1. The proposed findings of fact in Section I are adopted in material part

by paragraphs 4, 5, 7-11 and 15 of the Recommended Order.

2. The proposed findings of fact in Section 11 are adopted in material

part by paragraph 3 of the Recommended Order.

3. The proposed findings of fact in Section III are adopted in material

part by paragraph 7 of the Recommended Order.

4. The proposed findings of fact in Section IV are adopted in material

part by paragraphs 6 and 7 of the Recommended Order.

5. The proposed findings of fact in Section V are adopted in material part

by paragraph 6 of the Recommended Order.

6. The proposed findings of fact in Section VI are adopted in material

part by paragraph 7 of the Recommended Order.

7. The proposed findings of fact in Section VII are adopted in material

part by paragraph 8 of the Recommended Order.

8. The proposed findings of fact in Section VIII are adopted in material

part by paragraphs 12-20 of the Recommended Order.

9. The proposed findings of fact in Section IX are rejected as being

unsubstantiated by the record and as being a

conclusion of law.

The following rulings are made on the findings of fact submitted on behalf

of South Florida Water Management District.

1. The proposed findings of fact in paragraph 1 are adopted in material

part by paragraph 2 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material

part by paragraphs 8 and 9 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material

part by paragraph 9 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material

part by paragraphs 9-11 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material

part by paragraphs 5 and 7 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material

part by paragraphs 15 and 18 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are rejected as being

subordinate to the findings made in paragraph 3 of the Recommended Order.

8. The proposed findings of fact in paragraph 8 are adopted in material

part by paragraphs 6 and 7 of the Recommended Order.

9. The proposed findings of fact in paragraph 9 are adopted in material

part by paragraphs 6 and 7 of the Recommended Order and are rejected to the

extent that they are subordinate to the findings of paragraph 7 of the

Recommended Order.

10. The proposed findings of fact in paragraph 10 are rejected as being

subordinate to the findings made in paragraphs 3 and 7 of the Recommended Order.

11. The proposed findings of fact in paragraph 11 are rejected as being

subordinate to the findings made in paragraph 18 of the Recommended Order.

12. The proposed findings of fact in paragraph 12 are adopted in material

part by paragraph 18 of the Recommended Order.

13. The proposed findings of fact in paragraph 12 are adopted in material

part by paragraph 18 of the Recommended Order.

COPIES FURNISHED:

Don Mooers, Esquire

Qualified Representative

Post Office Box 1147

Palm City, Florida 34990

David J. Chestnut, Esquire

215 South Federal Highway

Stuart, Florida 34994

Terry E. Lewis, Esquire

Steve Lewis, Esquire

Messer, Vickers, Caparello,

French & Madsden, P.A.

2000 Palm Beach Lakes Blvd.

Suite 301

West Palm Beach, Florida 33409

John J. Fumero, Esquire

South Florida Water

Management District

Post Office Box 24680

West Palm Beach, Florida 33416-4680