94-005479 Sylvan Zemel, As Trustee; Shirley Kaufman, As Trustee; Nathan Zemel, As Trustee; Et Al. vs. Department Of Management Services, Division Of Building Construction, And South Florida Water Management District Status: Closed Recommended Order on Monday, June 19, 1995.

Summary: Application failed to provide reasonable assurances regarding water quantity and quality, maintenance respondents and adverse impacts to get construction and operations permit or operations permit

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVAN ZEMEL, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 94-5479

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF BUILDING CONSTRUCTION, )

and SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Ft. Myers, Florida, on

April 25 and 26, 1995, before Robert E. Meale, Hearing Officer of the Division

of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioner: Russell P. Schropp

Harold N. Hume, Jr.

Henderson Franklin

Post Office Box 280

Ft. Myers, Florida 33902

For Respondent O. Earl Black, Jr.

Department of Stephen S. Mathues

Management Department of Management Services

Services: 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

For Respondent Vincent J. Chen

South Florida Toni M. Leidy

Water Management South Florida Water Management District

District: 3301 Gun Club Road

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Management Services is

entitled to operation and construction and operation permits for the management

and storage of surface water.

PRELIMINARY STATEMENT

At the hearing, Petitioners called three witnesses and offered into

evidence 17 exhibits. Respondent Department of Management Services called two

witnesses and offered into evidence four exhibits. Respondent South Florida

Water Management District called one witness and offered into evidence three

exhibits. All exhibits were admitted except Petitioner Exhibit 12.

The transcript was filed May 17, 1995. Rulings on timely filed proposed

findings of fact are in the appendix.

FINDINGS OF FACT

I. The Proposed Permit

1. This case involves a 65-acre site in north Lee County owned by the City

of Ft. Myers. At all material times, the land has been zoned under industrial-

equivalent designations.

2. By leases that are not part of this record, Ft. Myers has leased 21.4

acres of the 65 acres to various governmental agencies, including Lee County,

Lee County Sheriff's Office, and possibly the Florida Department of Juvenile

Justice (formerly known as Department of Health and Rehabilitative Services).

The following facilities are presently located on the 21.4 acres: Juvenile

Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office

Aviation Department, and Emergency Operations Center.

3. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6

undeveloped acres to Lee County for a term of 50 years. This lease allows Lee

County to use the 43.6 acres for $1 per year, but only for the operation of a

Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may

terminate the lease if Lee County ceases to operate the facility. Likewise, Lee

County may terminate the lease if the Department of Juvenile Justice ceases to

fund the County's operation of the facility. Under the lease, preference is

given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates

liability to Lee County for claims or damages arising from released fuels,

including from pipelines.

4. The lease is not assignable without Ft. Myer's consent. By agreement

dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6-

acre parcel to the Department of Juvenile Justice for the purpose of the

construction of a juvenile residential commitment facility. Lee County receives

no rent from the Department of Juvenile Justice. In Paragraph 10 of the

agreement, the Department of Juvenile Justice agrees to maintain, at its

expense, "all improvements of every kind . . .." Lee County must make any

repairs to improvements if the Department of Juvenile Justice fails to do so.

5. By subsequent agreement, Respondent Department of Management Services

(DMS) became the agent for the Department of Juvenile Justice for the design,

permitting, and construction of the juvenile justice facility.

6. By Application for a surface water management permit executed June 16,

1994, DMS applied for a surface water management permit for the construction and

operation of a 10.9- acre project known as the Lee County Juvenile Commitment

Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County

and subleased to the Department of Juvenile Justice. The application states

that the existing 21.4 acres of developed sites, which are leased under separate

agreements to different governmental entities, "will be permitted as is."

7. The Staff Review Summary of Respondent South Florida Water Management

District (SFWMD) describes the purpose of the application as follows:

This application is a request for Authorization

for Construction and Operation of a surface

water management system to serve a 10.9 acre

Institutional project discharging to Six Mile

[Cypress] Slough via onsite wetlands and road-

side swales. The application also requests

Authorization for Operation of a surface water

management system serving a 21.4 acre existing

facility and 32.7 acres to remain unchanged for

a total permitted area of 65.0 acres. Staff

recommends approval of both authorizations with

conditions.

8. The Staff Review Summary accurately states that the owner of the land

is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases

to Lee County the 21.4 acres devoted to the five existing facilities. Although

Lee County probably is a lessee of some of these parcels, the Lee County

Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels.

One of the other parcels may involve a state agency, again under either a lease

or a sublease.

9. The Staff Review Summary inaccurately states that the project developer

is Lee County. The project developer is DMS or its principal, the Department of

Juvenile Justice.

10. The Staff Review Summary reviews the existing development on the 21.4

acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9-

acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's

Office Aviation Department, and 3.9-acre Emergency Operations Center.

11. The Staff Review Summary states that the footer of the Juvenile

Detention Center was inspected in February 1980. The site drains into a 1.2-

acre retention pond, which was a natural pond dug out to accept the drainage

from the Juvenile Detention Center. A small amount of surface flow drains from

the Juvenile Detention Center to a perimeter swale that drains west into a ditch

running along Ortiz Avenue.

12. The Staff Review Summary states that the building permit for the Price

Halfway House was issued in October 1982. The site drains into the 1.2-acre

retention pond, which was apparently enlarged a second time to accept the

additional flow. A small amount of the flow from the Price Halfway House also

drains to the perimeter swale and west into the Ortiz Avenue ditch.

13. The Staff Review Summary states that the building permit for the Lee

County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a

determination that no permit was required for two additions to the stockade in

1988 and 1989. For the additional impervious surface added by these additions,

one inch of water quality treatment was provided. After the abandonment of a

pumping system, drainage of the stockade site consists of water building up in

existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The

Staff Review Summary adds that a small retention area constructed at the

southeast corner of the site treats stormwater from the stockade and the

Sheriff's Office Aviation Department. The summary adds that a small amount of

stormwater drains north into an exterior swale that drains into the Ortiz Avenue

ditch.

14. The Staff Review Summary states that a building permit was issued for

the Sheriff's Office Aviation Department in August 1977. Stormwater from the

site sheetflows to exterior swales north and south of the building. When the

swales fill up, the water flows into the Ortiz Avenue ditch.

15. The Staff Review Summary states that a building permit was issued for

the Emergency Operations Center on October 11, 1977. Drainage from the center

flows directly into the Ortiz Avenue ditch.

16. Under "Water Quality," the Staff Review Summary reports that SFWMD

"did not require compliance with discharge rate or criteria" based on Section

1.6, Basis of Review for Surface Water Management Permit Applications within the

[SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD

for the construction and operation of surface water management systems. The

summary adds that there have been no "water quality or quantity complaints

associated with this site over the past 18 years since its initial

construction."

17. Noting that a surface water management permit is requested for the

entire 65-acre parcel, the Staff Review Summary states that the above-described

drainage systems for the five existing facilities are "operational and will

remain as they now exist."

18. Turning to the proposed development, the Staff Review Summary states

that the remaining 43.6 undeveloped acres "will also be leased to Lee County by

the City for the proposed commitment facilities." The facilities are accurately

described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which

will be drained by internal drainage swales and culverts flowing into detention

areas, which will discharge through a control structure into onsite wetlands

leading to the Ortiz Avenue swale.

19. Addressing designed discharge rates, the Staff Review Summary

acknowledges that the bootcamp's discharge rate will exceed the allowable rate

for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the

design rate is .37 cfs. The Staff Review Summary explains that this discrepancy

results from the use of the minimum size orifice (three inches) in the control

structure.

20. Addressing water quality, the Staff Review Summary reports that

commercially zoned sites are required to provide one-half inch dry pretreatment

for water quality unless reasonable assurance can be provided that hazardous

material will not enter the surface water management system. Determining that

no hazardous material will be stored or generated on the site, SFWMD did not

require the one-half inch dry pretreatment of runoff.

21. Noting that no surface water management permits have ever been issued

for any part of the 65-acre parcel, the Staff Review Summary recommends that,

subject to the customary Limiting Conditions, SFWMD issue:

Authorization for Construction and Operation

of a 10.9 acre Institutional Project discharging

to Six Mile Cypress Slough via onsite wetlands

and roadside swales, Operation of a 21.4 acre

existing facility and 32.7 acres to remain

unchanged for a total permitted area of 65.0 acres.

22. Limiting Condition 4 states that the permittee shall request transfer

of the permit to the "responsible operational entity accepted by [SFWMD], if

different from the permittee." Limiting Condition 8 adds:

A permit transfer to the operation phase shall

not occur until a responsible entity meeting

the requirements in section 9.0, "Basis of

Review . . .," has been established to operate

and maintain the system. The entity must be

provided with sufficient ownership or legal

interest so that it has control over all water

management facilities authorized herein.

23. Special Condition 11 states: "Operation of the surface water

management system shall be the responsibility of Lee County."

II. The Permittee and the Entity Responsible for Maintenance

24. The proposed permit consists of two authorizations. The first

authorization is for the construction and operation of the surface water

management system on the 10.9-acre parcel on which will be constructed the

bootcamp and halfway house. The second authorization is for the operation of

the existing surface water management system on the already-developed 21.4 acres

and the unimproved surface water management system on the remaining 32.7 acres.

25. There are two problems with the designation of Lee County as the

entity responsible for maintaining the permitted surface water management

systems.

26. Basis of Review 9.1.B states:

To satisfy [P]ermit [L]imiting [C]ondition

[8], the Permittee must supply appropriate

written proof, such as either by letter or

resolution from the governmental entity that

the governmental entity will accept the oper-

ation and maintenance of all the surface water

management system components . . ..

27. The authorization for operation of the systems on the 21.4-acre and

32.7-acre parcels does not await any construction. Once the permit is issued,

the authorization is effective. Therefore, all prerequisites to the designation

must have been satisfied before the operation permit issues.

28. For the 21.4-acre parcel, DMS has not provided reasonable assurance

that Lee County is the lessee or sublessee of all of the parcels underlying the

five existing facilities. In fact, it appears that Lee County is not the lessee

or sublessee of all of these parcels. Even if Lee County were the lessee or

sublessee of these five parcels, DMS has not provided reasonable assurance that

Lee County has assumed responsibility for the maintenance of the surface water

management system for the five parcels.

29. Contrary to Basis of Review 9.1.B, there is no written agreement by

Lee County to assume operational responsibility, nor is there even an actual

agreement to this effect. SFWMD's rules sensibly require that written consent

be obtained before the operation permit is issued.

30. Likewise, DMS has failed to show that Lee County has agreed to assume

responsibility for the operation and maintenance of the surface water management

system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before

issuing the permit because no construction will precede operation for the

surface water management system on this parcel.

31. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel

is leased to Lee County as part of the 43.6- acre parcel. But in the December

17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes

responsibility for maintaining all improvements, which arguably includes

drainage improvements.

32. As between Ft. Myers and Lee County, Lee County assumes secondary

liability for the maintenance of all improvements. But the failure of the

Department of Juvenile Justice to do so would likely represent a default under

the agreement. In such a case, the lease and separate agreement probably would

either be in litigation or Lee County would have terminated its obligations

under the contracts. In either case, it is unlikely that Lee County would

perform its secondary responsibility to maintain the drainage improvements,

especially where it is receiving no rent from the Department of Juvenile Justice

and priority is given to Ft. Myers juveniles in admission decisions.

33. Construction will precede operation as to the 10.9- acre parcel so the

parties have an opportunity, even after the construction and operation permit is

issued, to secure the necessary written consent before the operation permit goes

into effect. But similar deficiencies exist with respect to the 10.9- acre

parcel because the same agreement imposes upon the Department of Juvenile

Justice, not Lee County, the obligation to maintain improvements.

34. An additional complication arises as to the 10.9-acre parcel. The

Department of Juvenile Justice intends to contract with one or more private

entities to operate the bootcamp and halfway house, so there is at least one

more party that Lee County could claim was responsible for maintenance of the

surface water management system.

35. The question of who is responsible for maintaining the surface water

management systems is important. Drainage quantities and directions can change

if swales clog up with vegetation or other matter. In this case, one roadside

swale in the area of the 21.4-acre parcel is blocked with vegetation.

36. DMS and SFWMD have thus failed to provide reasonable assurance that

the designated entity has assumed responsibility for the maintenance and

operation of the existing systems or will assume responsibility for the

maintenance and operation of the proposed system following its construction.

III. Permit for Existing Development

37. Section 1.6, Basis of Review, states:

[SFWMD] issues construction and operation

permits for proposed surface water management

activities and operation permits for existing

systems. The criteria herein are specifically

designed to apply to proposed activities

(construction and operation permits). Therefore,

some of the criteria may not be applicable to

the permitting of existing systems (operation

permits). For example, in some cases, existing

systems may not meet flood protection criteria.

Criteria deviation for existing systems will be

identified in staff reports.

38. SFWMD has produced no evidence explicating the extent to which

existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are

entitled to operating permits without meeting some of the criteria applicable to

proposed systems, such as the system on the 10.9-acre parcel. There is nothing

whatsoever in the record to explain why certain existing systems might not have

to meet certain criteria, such as flood protection criteria. Except for the

quantity deviation discussed below, there is nothing in the record disclosing

the extent to which SFWMD has waived, or even considered the applicability of,

certain or all criteria prior to the issuance of operation permits for the

existing systems.

39. In practice, SFWMD does not adhere even to the vague standards implied

in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in

this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit

existing systems "as is, where is," as long as they have had no reported

problems.

40. There are numerous deficiencies in the "as is, where is" unwritten

policy, apart from the obvious one that it conflicts with the assurance of 1.6

that only "some of the criteria may not be applicable" to existing systems.

First, the record does not define what a "problem" is. Second, the record

discloses no means by which reported problems are collected and later accessed,

such as by a parcel index.

41. The "as is, where is" policy is an abdication of the limited

responsibilities that SFWMD imposes upon itself in 1.6, especially when applied

to the present facts.

42. The facts are straightforward. Neither Ft. Myers, Lee County, nor any

other party has ever obtained a permit for any surface water management system,

despite numerous improvements in the past 20 years requiring such permits,

including the construction of a heliport, at which maintenance and refueling of

helicopters takes place. In two relatively minor cases, discussed below, SFWMD

erroneously determined that no permit was required. In one of those cases, the

applicant, Lee County, candidly admitted the existence of a flooding problem.

Based on the present record, neither DMS nor SFWMD has justified the issuance of

an operation permit for the systems on the 21.4- and 32.7-acre parcels based

either on Basis of Review 1.6 or on the "as is, where is" unwritten policy.

43. Construction of the five improvements on the 21.4 acres began between

1975 and December 1977 with construction of a portion of the Lee County Stockade

building and parking, Emergency Operations Center building and parking, and a

now- removed barn for the Lee County Sheriff's Office. At the same time, a lake

was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of

the 21.4 acres were converted to impervious surface.

44. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were

converted to impervious surface by the construction of a perimeter dike and

road. During this period, construction commenced on the Juvenile Detention

Center, adding another 1.63 acres of impervious surface.

45. Between March 1980 and December 1981, additions were made to the Lee

County Stockade building and the lake for an additional 0.45 acres of impervious

area.

46. Between December 1981 and March 1984, the Price Halfway House building

and parking were constructed, adding another 0.79 acres of impervious surface.

47. Between March 1984 and February 1986, a heliport facility and landing

area were constructed for the Lee County Sheriff's Office, adding another 1.01

acres of impervious surface.

48. Between February 1986 and February 1990, an additional 2.31 acres of

impervious surface were added through additions to the Lee County Stockade and

parking area, juvenile detention center, and Emergency Operations Center parking

area.

49. Between February 1990 and April 1993, another addition to the Lee

County Stockade added 0.62 acres of impervious surface. An additional 0.17

acres of lake was excavated.

50. During this time, applicable rules and statutes required permits for

the construction of "works" affecting surface water, including ditches,

culverts, and other construction that connects to, or draws water from, drains

water into, or is placed in or across the waters in the state. The buildings,

parking, other impervious surfaces, ditches, swales, dikes, lake excavations,

and, at one point, addition of a now- abandoned pump all constituted "works" for

which surface water management permits were required.

51. In 1988, Lee County or Ft. Myers applied for an exemption for an

addition to the Lee County Stockade. The basis for the claim of exemption was

that the parcel consisted of less than 10 acres and the total impervious surface

did not exceed two acres. Although rules in effect at the time required

consideration of the contiguous 65 acres under common ownership and the total

impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD

erroneously issued an exemption letter.

52. The second instance involving a claim of exemption took place in 1989

when Lee County submitted plans for another addition to the Lee County Stockade,

adding 0.51 acres of impervious surface. The submittal acknowledged a

"flooding" problem, but promised a master drainage plan for the "entire site."

SFWMD determined that no permit would be required due to the promise of a master

drainage plan.

53. No master drainage plan was ever prepared. The flooding problem

precluded issuance of the operation permit on an "as is, where is" basis for the

already-developed 21.4-acre parcel, even assuming that SFWMD adequately

justified the use of this unwritten permitting procedure.

54. In fact, SFWMD has not explained adequately its "as is, where is"

permitting procedure or even the undelineated permitting criteria referenced in

1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential

permitting of existing systems. The owner and developer constructed the

existing systems in near total disregard of the law. The two times that the

owner and developer complied with the permitting process involved small

additions for which exemptions should not have been granted. In one case, SFWMD

exempted the proposed activity due to its error calculating minimum thresholds

as to the areas of the parcel and the impervious surface. In the other case,

SFWMD exempted the proposed activity partly in reliance on a promised master

drainage plan that was not later prepared.

55. To issue operation permits for the existing systems on the 21.4- and

32.7-acre parcels would reward the owner and developer of the 65-acre parcel for

noncompliance with the law and provide an incentive for similarly situated

landowners and developers likewise to ignore the law.

56. Before issuing operation permits on systems that have received no

comprehensive review and that have been added piecemeal over the years, SFWMD

must evaluate the surface water systems on the entire 65-acre parcel to

determine whether they meet all applicable criteria. The "as is, where is"

unwritten policy has no applicability where there have been reports of flooding.

If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6,

it must be prepared to identify and explain which criteria are waived and why.

IV. Water Quality

57. Basis of Review 5.2.2 provides that projects that are zoned commercial

or industrial, such as the present one, must provide one-half inch of "dry"

detention or retention pretreatment, unless reasonable assurances are provided

"that hazardous materials will not enter the project's surface water management

system." There is no existing or proposed dry detention on the 65 acres.

58. The existing development includes the Sheriff's Office Aviation

Department, which serves as a heliport. The fueling and maintenance of

helicopters means that contaminants may enter the stormwater draining off the

site. The functioning of the surface water system on this site is therefore of

particular importance.

59. There also may be more reason to question the functioning of the

surface water system on this site. It is south of the Lee County Stockade,

where flooding has been reported. The heliport site has also been the subject

of more elaborate drainage improvements, such as the location of a small

retention pond near the Stockade boundary and a pump, the latter of which has

since been abandoned.

60. The existing system on the 21.4-acre parcel, as well as the existing

and proposed systems on the remainder of the 65 acres, require dry pretreatment

for reasons apart from the presence of the heliport. The materials likely to be

used with the existing and proposed developments are similar to those found on

residential sites. SFWMD and DMS contend that there is therefore no need to

require dry pretreatment as to these areas.

61. However, the existing and intended institutional uses, such as jails

and bootcamps, represent an intensity of use that exceeds the use typical in

areas zoned residential. This increased intensity implies the presence of

typical residential contaminants, such as petroleum-based products or cleaning

solvents, but in greater volumes or concentrations, if not also, in the case of

solvents, different compositions. The lease addresses potential liability for

released petroleum. In the absence of a showing that such hazardous materials

are prevented from entering the runoff, SFWMD must require dry pretreatment for

the systems occupying the entire 65-acre parcel.

62. DMS and SFWMD have thus failed to provide reasonable assurance that

the existing systems satisfy applicable water quality criteria or that the

proposed system will satisfy applicable water quality criteria.

V. Water Quantity

63. The 65-acre parcel adjoins Ortiz Avenue on the west and property owned

by Petitioners on the east and south that is undeveloped except for a borrow pit

some distance from the 65- acre parcel. The parcel is roughly 1000 feet east-

west and 2700 feet north-south.

64. The proposed halfway house is at the north end of the parcel. The

halfway house is situated between a proposed detention pond on the west and a

recreation field on the east. A paved road divides the halfway house from the

rest of the 65- acre parcel.

65. South of the road are the Lee County Stockade on the west, which abuts

Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates

these two sites. The berm runs from the road along the west shore of the twice-

enlarged 1.2- acre retention pond and the west boundary of the Price Halfway

House, which is south of the Juvenile Detention Center. To the west of the

berm, south of the Lee County Stockade, is the Sheriff's Office Aviation

Department or heliport facility, which abuts Ortiz Avenue.

66. South of the Aviation Department is an outparcel used by the Florida

Department of Corrections that also abuts Ortiz Avenue. East of the outparcel

is the proposed halfway house with a proposed detention pond west of the halfway

house and south of the outparcel. The Emergency Operations Center, which abuts

Ortiz Avenue, is south of the detention pond and surrounded on three sides by

the 32.7 acres to be left undisturbed at this time.

67. There are perimeter berms around all of the parcels except for the

Juvenile Detention Center and Price Halfway House, which are served by a single

berm, and the Emergency Operations Center, which appears not to be bermed. The

prevailing natural drainage is not pronounced either by direction or volume

because the land is nearly level. The natural direction of drainage is to the

south and west and remains so on Petitioners' land to the east and south and the

undisturbed 32.7 acres to the south. The variety of drainage directions within

the remainder of the 65- acre parcel reflects the extent to which berms, swales,

ponds, pumps, roads, buildings, parking areas, and other works have been added

to the northerly parcels.

68. Runoff reaching the northern boundary of the 65 acres will be diverted

due west around the proposed detention pond to the swale running along the east

side of Ortiz Avenue. Runoff from the recreation field and halfway house

building and parking area drain into the proposed detention pond, which releases

water through a gravity control device to the Ortiz Avenue swale. There appears

to be a connection routing some runoff from the south side of the recreation

field to the Juvenile Detention Center, where it travels west in a roadside

swale to the Ortiz Avenue swale.

69. A little less than half of the area of the Juvenile Detention Center

site drains into perimeter swales along the north and east borders and then to

the west before emptying into the Ortiz Avenue swale. The remainder of the

Juvenile Detention Center drains into the retention pond. The same is true of

the Price Halfway House.

70. The Lee County Stockade drains to each of its borders where the water

then runs west along the north or south border to the Ortiz Avenue swale. The

southern half of the Lee County Stockade site drains into the small retention

pond at the northwest corner of the Sheriff's Office Aviation Department.

71. Most of the runoff from the heliport facility runs to the southwest

corner of the parcel, which is the location of the abandoned pump. From there,

the runoff continues to the Ortiz Avenue swale. Very little if any of the

runoff from the heliport enters the small retention pond on the northwest corner

of the parcel.

72. The bootcamp drains into the detention pond, which then releases water

by a gravity control structure into a portion of the undisturbed 32.7-acres

before entering the Ortiz Avenue swale. The Emergency Operations Center site

drains in all directions away from the building and parking area, eventually

draining into the Ortiz Avenue swale.

73. Stormwater discharge rates from the proposed halfway house and

bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums

in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively.

SFWMD and DMS contend that the excessive discharge from the bootcamp is

acceptable because the gravity control device for the proposed detention pond is

of the smallest size allowable, given the indisputable need to avoid clogging

and ensuing upstream flooding.

74. Initially, SFWMD approved the discharge rates for the halfway house

and bootcamp because, when combined, they did not exceed the total allowable

value. However, this approach was invalid for two reasons. First, the two

sites contain entirely independent drainage systems separated by several hundred

feet. Second, after correcting an initial understatement for the value for the

halfway house, the actual total exceeds the maximum allowable total.

75. SFWMD contends that the slight excess is acceptable because of the

inability to use a smaller orifice in the gravity control structure. However,

the discharge quantity easily could have been reduced by design alternatives,

such as enlarging the detention pond, which is mostly surrounded by land that is

to be left undisturbed. The ease with which the minimum-orifice problem could

have been avoided rebuts the presumption contained in Basis of Review 7.2.A that

excessive discharge quantities are presumably acceptable if due to the inability

to use a smaller orifice. Also, SFWMD and DMS have failed to show that the

effect of the excessive discharge quantities is negligible, so the exception in

the SFWMD manual for negligible impacts is unavailable.

76. Neither SFWMD nor DMS provided any reasonable assurance as to the

quantity of discharge from the 21.4 acres. Rough estimates suggest it is more

likely that the quantity of discharge may greatly exceed the allowable maximum.

77. SFWMD must evaluate the water-quantity issues before issuing operation

permits for the systems on the 21.4- and 32.7- acre parcels and a construction

and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines

that all water quantity criteria are met as to the existing systems, it may

issue operation permits for the systems on the 21.4- and 32.7- acre parcels.

Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to

waive compliance with any or all quantity standards in reliance on Basis of

Review 1.6, evaluate the effect of the waiver and explain the basis for the

waiver.

78. DMS and SFWMD have thus failed to provide reasonable assurance that

the existing systems satisfy applicable water quantity criteria or that the

proposed system will satisfy applicable water quantity criteria.

VI. Impacts on Adjacent Lands

79. Petitioners' property is impacted by the above- described drainage in

two ways. First, Petitioners' property abutting the east side of Ortiz Avenue,

south of the 65 acres, is especially vulnerable to flooding because the Ortiz

Avenue swale is not a V-notch, but a half-V. The closed side of the swale

prevents the water from running onto Ortiz Avenue. The open side of swale abuts

Petitioners' property, so, if the swale's capacity is exceeded, stormwater will

be released onto Petitioners' land.

80. Second, perimeter berming along the east side of the 10.9- and 21.4-

acre parcels will impede flow off the part of Petitioners' property located to

the east of the 65 acres. A swale between the proposed halfway house and the

Juvenile Detention Center will receive runoff from a small portion of

Petitioners' property to the east and mostly north of the 65 acres. But there

is no indication how much runoff from Petitioners' property can be so

accommodated, how much runoff is impeded by the existing berm along the east

side of the Juvenile Detention Center and Price Halfway House, and how much

runoff will be impeded by the addition of new berms along the east side of the

proposed halfway house and bootcamp.

81. Basis of Review 6.8 requires that swales and dikes allow the passage

of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b),

Florida Administrative Code, requires that an applicant provide reasonable

assurances that a surface water management system will not cause adverse water

quality or quantity impacts on adjacent lands.

82. Neither SFWMD nor DMS obtained topographical information for

Petitioners' property, as required by the Basis of Review. Rough estimates

suggest that the proposed project may require Petitioners' property to retain

considerably more stormwater from the design storm event of 25 years, three

days.

83. DMS and SFWMD have thus failed to provide reasonable assurance that

the proposed system would not have an adverse impact on Petitioners' upstream

and downstream land.

CONCLUSIONS OF LAW

84. The Division of Administrative Hearings has jurisdiction over the

subject matter. Section 120.57(1), Florida Statutes. (All references to

Sections are to Florida Statutes. All references to Rules are to the Florida

Administrative Code.)

85. Petitioners have standing.

86. Section 373.413(1) authorizes SFWMD to

require such permits and impose such reasonable

conditions as are necessary to assure that the

construction or alteration of any stormwater

management system . . . or works will comply

with the provisions of this part and applicable

rules promulgated thereto and will not be harmful

to the water resources of the district.

87. Section 373.413(9) provides that, until new rules are adopted,

"existing rules adopted under this part and rules adopted pursuant to the

authority of ss. 403.91-403.929 shall be deemed authorized under this part and

shall remain in full force and effect."

88. Rule 40E-4.301 requires that an applicant for a surface water

management permit "give reasonable assurances that the surface water management

system:"

(a) provides adequate flood protection and

drainage, without causing over-drainage.

(b) will not cause adverse water quality and

quantity impacts on receiving waters and adjacent

lands regulated pursuant to Chapter 373, F.S.

(c) will not cause discharges which result in

any violation, in surface waters of the state,

of the standards and criteria of Chapter 17-302,

F.A.C.

(d) will not cause adverse on-site or off-

site impacts on surface and groundwater levels

and flows, including impacts to sources of water

supply and wetland hydrology.

(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, F.A.C.

* * *

(k) will not otherwise be harmful to the water

resources of the District.

(l) will not interfere with the legal rights of

others as defined in subsection 17- 40.401(8), F.A.C.

* * *

89. Rule 40E-4.091(1)(a) incorporates by reference the Basis of Review.

90. For the reasons set forth above, DMS and SFWMD have failed to provide

reasonable assurances concerning operation responsibility, water quality, water

quantity, and impacts on adjacent land to allow the issuance of the operation

permits for the existing systems on the 21.4- and 32.7-acre parcels and the

construction and operation permit for the proposed system on the 10.9-acre

parcel.

RECOMMENDATION

It is hereby

RECOMMENDED that the South Florida Water Management District enter a final

order denying the application of the Department of Management Services for all

permits for the operation and construction and operation of surface water

management systems on the 65-acre parcel.

ENTERED on June 19, 1995, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

on June 19, 1995.

APPENDIX

Rulings on Proposed Findings of Petitioners

1-18: adopted or adopted in substance.

19: rejected as subordinate.

20-21: adopted or adopted in substance.

22-24 (first sentence): rejected as irrelevant.

24 (remainder)-46: adopted or adopted in substance.

47-53: rejected as subordinate.

54-64 (first sentence): adopted or adopted in substance.

64 (second sentence)-66: rejected as subordinate.

Rulings on Proposed Findings of Respondent SFWMD

1-10: adopted or adopted in substance.

11: rejected as unsupported by the appropriate weight of the evidence.

12: rejected as unnecessary.

13: adopted or adopted in substance.

14-15: rejected as subordinate.

16: rejected as unsupported by the appropriate weight of the evidence.

17 (except for last sentence): adopted or adopted in substance.

17 (last sentence): rejected as unsupported by the appropriate weight of

the evidence.

18-32 (first sentence): rejected as unnecessary.

32 (remainder): rejected as unsupported by the appropriate weight of the

evidence.

33: rejected as subordinate.

34: rejected as unsupported by the appropriate weight of the evidence,

except that the proposed ponds are wet detention.

35 (first sentence): adopted or adopted in substance.

35 (remainder): rejected as unsupported by the appropriate weight of the

evidence.

36-45: rejected as unnecessary.

46-47: rejected as unsupported by the appropriate weight of the evidence.

48-50 (second sentence): adopted or adopted in substance.

50 (remainder): rejected as unsupported by the appropriate weight of the

evidence.

51-52, 55-57 (first sentence), and 58: adopted or adopted in substance,

although insufficient water quality treatment.

53: adopted or adopted in substance.

54: rejected as unsupported by the appropriate weight of the evidence.

57 (second sentence): rejected as unsupported by the appropriate weight of

the evidence.

59: rejected as unsupported by the appropriate weight of the evidence.

60: adopted or adopted in substance, except after "therefore." None of

remainder logically follows from what is said in 1.6.

61: rejected as unsupported by the appropriate weight of the

evidence.

62-64: rejected as subordinate, unsupported by the appropriate weight of

the evidence, and irrelevant.

65: rejected as subordinate.

66: rejected as irrelevant. The burden is on the applicant and SFWMD, if

it wishes to issue the permits, to provide reasonable assurances as to the

adverse impact of the drainage systems.

67-68: rejected as subordinate.

69: rejected as unsupported by the appropriate weight of the evidence.

70: rejected as unsupported by the appropriate weight of the evidence.

71: rejected as repetitious.

72: rejected as irrelevant, except for past report of flooding, which is

rejected as repetitious.

73: rejected as repetitious.

74: rejected as irrelevant and subordinate.

75 (first three sentences): adopted or adopted in substance.

75 (remainder): rejected as unsupported by the appropriate weight of the

evidence.

1 and 2: rejected as irrelevant insofar as the same result is reached with

or without the permit modifications.

Rulings on Proposed Findings of Respondent DMS

1-4: adopted or adopted in substance.

5: rejected as subordinate.

6: rejected as unsupported by the appropriate weight of the evidence.

7: adopted or adopted in substance.

8: rejected as subordinate.

9: adopted or adopted in substance, except that the excessive discharge

was not "caused" by the minimum-sized orifice, only

defended on that basis.

10: adopted or adopted in substance.

11-12: rejected as subordinate.

13: rejected as irrelevant.

14: adopted or adopted in substance.

15: adopted or adopted in substance, except for implication that no

flooding problems existed.

16: rejected as recitation of evidence.

17: rejected as subordinate.

18: rejected as irrelevant.

19: adopted or adopted in substance, to the extent that separateness of

systems is relevant.

20: rejected as subordinate.

21: adopted or adopted in substance, except for last sentence, which is

rejected as unsupported by the appropriate weight of the evidence.

22: rejected as subordinate.

23-30: rejected as unsupported by the appropriate weight of the evidence,

recitation of evidence, and subordinate.

31: rejected as unsupported by the appropriate weight of the evidence.

32: rejected as unsupported by the appropriate weight of the evidence,

based on the present record.

33: rejected as unsupported by the appropriate weight of the evidence and

relevance.

COPIES FURNISHED:

Tilford C. Creel

Executive Director

South Florida Water Management District

P. O. Box 24680

West Palm Beach, FL 33416

Russell P. Schropp

Harold N. Hume, Jr.

Henderson Franklin

P.O. Box 280

Ft. Myers, Fl 33902

O. Earl Black, Jr.

Stephen S. Mathues

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, FL 32399-0950

Vincent J. Chen

Toni M. Leidy

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, FL 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.