21

BIRDS OF A FEATHER

FLOCK TOGETHER

"Brevard missed a chance to get more bang for its bucks when it bought lakefront and lake-bottom property near Cocoa in 1987, a state official says," wrote Wevonneda Minis of Florida Today, referring to John Hankinson with the St. Johns River Water Management District.

In 1987, Brevard County purchased 1,100 acres bordering Lake Poinsett from David Smith and Trustcorp of Florida N.A., (which Smith controls) for $1.375 million. The objective was to build a park next to his Sabal Hammocks development. Ultimately a $1.85 million park was completed within Commissioner Sue Schmitt-Kirwan's district. Included in this park was a 1000 seat pavilion costing $760,864 that Schmitt-Kirwan had redesigned and enlarged from the original 600 seat size.

The monies to acquire and construct the F. Burton Smith Park (named for David Smith's father) came from:

Beach and Riverfront fund $ 1,036,134

Tourist Development Council $ 519,640

Special Legislative Appropriation $ 175,000

Land & Water Conservation Fund $ 119,242

Then in March of 1992, investigative reporter Wevonneda Minis of Florida Today, disclosed that when the County made the purchase, it bought land that already belonged to the public in the form of state owned wetlands. The Florida Department of Natural Resources asserts most of the 1,100 acre parcel was not Smith's to sell. The waters of Lake Poinsett, which cover 860 of the acres, make them the property of the state.

The Commission was alerted to this condition when the County was unable to obtain title insurance on much of the land. Former County Attorney William E. Curphey III said, "I recommended to Commissioner Schmitt-Kirwan that the County not buy this land." The County paid Smith for the entire parcel anyway, with over $1 million of taxpayer money being questionably spent.

The St. Johns River Water Management District (SJRWMD), a Florida state agency, often works with counties in the acquisition of wetlands surrounding the river. Brevard County was co-operating with John Hanickson, the Director of Planning and Acquisitions for SJRWMD, on the purchase of the 1,100 acre Smith Parcel.

In April of 1992, while researching the St. Johns River Water Management District's (SJRWMD) actions to preserve the river, Floyd RogersÙ of Melbourne, Paul Jarrett of Cocoa and George Draper of Melbourne, uncovered a letter that Mr. Hanickson wrote to Jim Swann of Cocoa, who at the time was a Governoring Board Member of the SJRWMD.

John Hanickson inspected the property and commenting on the appraisal he wrote, "Gwen Heller, land acquisition agent for the County, advised me that they (Brevard County) had some 'problems' with the appraisals, that they were too low, and that she was going back to talk with them about re-addressing the appraisals. This comment understandably made me nervous."

Later he learned the pasture land outside of the dike was appraised at $1,375 an acre. This seemed excessive to him considering other appraisals that the District had done in the immediate area.

In a subsequent visit, John Hanickson met with Teresa Kramer and another county official to discuss the purchase of the property. He found out that the County intended to allow an exception so that David Smith's Sabal Hammock development could retain the perimeter dikes and have marinas in the future. Hanickson opposed this land configuration and the construction of any marinas.

Referring to the discovery that Teresa Kramer was no longer a County employee he wrote, "I also have some problem with the fact that Teresa Kramer was working for the County to pursue this acquisition and then became the representative of the landowner. I am sure that if she were an attorney that legal ethics would not permit such a rapid transformation."

Concerned over the possibility that the sensitive riverfront land would be used for a housing development and a golf course, he added, "I was assured that no rezoning agreements were attached to the deal, but the potential for an "appearance of impropriety exists."

The Board of County Commissioners had asked the St. Johns River Water Management District to participate in the purchase of the site. But when Hanickson made telephone calls in an effort to participate, he was given the impression that there were too many problems with the acquisition, so the deal would not be pursued. Later he found out the County had acquired the land on their own.

Hanickson responded, "It is my clear impression that the St. Johns River Water Management District (SJRWMD) was deliberately not included in the negotiation phase."

If the County had allowed the SJRWMD to be involved in this purchase, Hanickson believed:

The District could have saved the County hundreds of thousands of dollars because Hanickson believed some of it to be state owned wetlands

800 or more acres could have been purchased for the preservation of wetlands instead of for the Sabal Hammock 800 home development

The District would have opened the property dikes to allow the river to flow back into the lowlands for cleansing before flowing into the St. Johns River. That possibility evaporated when the county failed to buy the 800 acres and left the dikes to David Smith.

In a closing paragraph John Hanickson adds that he believed the SJRWMD should not get involved in this purchase at such a late date. "It is my impression that this is not the answer that Commissioner Schmitt-Kirwan wants....I feel that the County, and perhaps Commissioner Schmitt-Kirwan individually stands to suffer embarrassment if this arrangement is put under the microscope in a public debate. It may well be that the County has obtained what it needs in an arrangement that is quite suitable to their purposes. It does not, however, appear to meet the requirements the St. Johns River Water Management District Board would impose on a land acquisition project."

Leroy Wright of S.A.V.E., an organization trying to preserve the wetlands around the St.Johns and Lake Poinsett, addressed the Board of County Commissioners on May 5, 1992 in an attempt to help the taxpayers. He asked the Board to pursue a $1 million refund from David Smith for the state owned land the County bought. The Board took no action on his proposal.

EXAMPLE:

While the County is wasting money buying land the taxpayer already owns, communities like Palm Bay do not have adequate parks. John SciannaÙ has worked with the staff of the Palm Bay City Council to correct this problem.

In December 1989, Palm Bay paid $200,000 of its own money for 200 acres for a Palm Bay Regional Park and then gave the land to the County to build the Park. The County received $450,000 in grant monies for its construction. The Park construction was started in 1990 although the part containing soccer fields opened in 1992, the rest is still unfinished.

+ How many more County park facilities have not been funded or finished because the County chose to spend the funds on this disputed wetland parcel?

How often is this $760,864 Park Pavilion used?

Why was a $1.8 million Park with a 1,000 seat Pavilion located far from the people and adjacent to an isolated development?

22

DON'T DO THE CRIME

IF YOU CAN'T DO THE TIME

"The St. Johns is a truly unique and irreplaceable economic resource," said Florida Governor Lawton Chiles. "It is our responsibility and obligation to do all within our power to protect and restore the river."

South Brevard's main drinking water supply originates in Lake Washington, a part of the St. John's River in south Brevard County. The water is filtered as it flows into the river through marshes and natural wetlands. Any pollution to the river or its wetlands directly affects the quality of the water south Brevard County residents consume each day in their homes and restaurants. Actions of the Brevard County Commission and the Governing Members of the St. Johns River Water Management District concerning these wetlands affects this drinking water.

The St. Johns River is truly a unique river. It is one of only four rivers in the world, the Nile in Egypt, the Amur-Argun in Northern China, Lena-Kirenga in eastern Russia and the St. Johns, that flow from south to north. It begins its extraordinary flow northward in the marshlands of rural Indian River County 30 miles west of Vero Beach. As it traverses the length of Brevard County west of Interstate 95, it forms a series of lakes: Lake Hellen Blazes, Little Sawgrass Lake, Sawgrass Lake, Lake Washington, Lake Winder, and Lake Poinsett. The St. Johns continues to widen and deepen as it makes its way north, becoming a major shipping lane in Jacksonville before meeting the Atlantic Ocean. Because of its location, size, and convenience the river has played a major role in the development of Florida's economy and quality of life for hundreds of years.

According to Dave Cox, a biological administrator with the Florida Game and Fresh Water Fish Commission, the St. Johns River plays a role in our weather, as well. It has a modifying effect on temperatures and its large open acres of marsh affect wind patterns. "If you ever noticed summer squalls, they tend to come out of the St. Johns River," Cox said.

He believes that the river is passing into the endangered category, but it can be saved if we act now. Avid fisherman Leroy Wright of Cocoa is trying to do just that. He founded an organization called S.A.V.E. (Sportsmen Against Violating the Environment) in 1985 following an incident in which 100,000 fish were killed by St. Johns River conditions.

Fish kills continue, and as recently as July 6, 1992 Jocelyn Coleman of Florida Today reported, "Dead fish floated Sunday on the surface of Lake Winder, victims of the fifth fish kill in the upper St. Johns River area in the past three weeks."

Fishery biologist Dave Cox estimated as many as 300,000 dead fish lay rotting in Lake Winder. The river "looks like chocolate milk and it smells like a septic tank," said Cox. The rotting fish give off the same gases as a septic tank - hydrogen sulphide and methane.

He explained a possible reason for the kill, "Increased agricultural runoff pollutes the river and lakes causing nutrients for algae blooms. The exotic plants rob the river of oxygen so the fish die." Manure and fertilizer pollute the runoff during periods of heavy rain, and the runoff combines with plant decay to suck the oxygen from the water. High summer temperatures bake the mixture, aggravating the situation. "The poor fish just can't make it," Cox told the Orlando Sentinel. "They suffocate." Not only does the river support 50 to 60 species of fish, but thousands of native plants and a large number of birds and mammals also depend on the river and its fish for survival.

Large farms and ranches bordering the river, such as A. Duda & Sons and Morman owned Deseret Ranches of Florida, are the likely sources for the agricultural runoff, although they deny responsibility. Duda & Sons has two pumps on its Lake Winder land - each capable of pumping 30,000 gallons of excess water per minute into the river -- but they say they are seldom used.

Rod McGowen, an owner of Terri's Tackle Store in Cocoa, commented on the Duda pumps' effect on the July fish kill, "This happens every time we have a heavy rain because they start pumping their pumps. That river and lake have raised about four feet. There is no way that much water fell...that water came from somewhere else."

But Mason Blake, Vice President and corporate counsel of the Viera Company, an affiliate of A. Duda & Sons, told the Florida Today paper that Duda regulates the water it pumps off the ranch and is very concerned about the health of fishing waters.

"We're blaming it on agricultural interests like Duda along Lake Winder because that's all that's up there," S.A.V.E. president Wright told the Orlando Sentinel. "We saw a lot of dead fish lodged in their canal." He said the canal water looked "just like goop." His concern is not just for today. "I've got grandchildren but at the rate we're tearing the river up there won't be anything left for them," he said.

Dave Cox, of the Florida Game and Fresh Water Fish Commission, believes it is up to the St. Johns River Water Management District to prevent large fish kills in the future. "There's not much we can do but document what's going on."

John Julianna, Melbourne office director for the Water Management District, reported several fish kills occurred south of Lake Winder, but he did not anticipate the kills to continue northward. North of Lake Poinsett, he told the Florida Today paper, the river receives less pollution from farms and ranches and becomes deeper, wider, and able to absorb more pollution.

These huge accumulations of plant overgrowth, accelerated by pollution, are choking the upper parts of the river and are occasionally treated with aerial chemical spraying. Officials take this expensive band-aid approach, costing hundreds of thousands of dollars, since the overgrowth can do more costly damage than killing fish. The high levels of rain during the first week of July 1992, broke loose acres of hydrilla off Little Sawgrass Lake. This growth moved up the St. Johns and caught on the concrete supports at the U.S. Highway 192 overpass.

Steve Homan, of Florida Department of Transportation, told Wevonneda Minis of Florida Today paper, "The snake-infested hydrilla became so dense - up to 9 feet deep - that water rushed through the few unconstricted areas, and might be eroding the concrete supports."

What has caused such destruction to this river and its Brevard County lakes?

Perhaps it's the long held attitude that natural resources are to be used until exhausted, rather than the healthier one that our resources can be enjoyed and managed as long as they are preserved for continued use in the future.

During the 1940's and 1950's, landowners had free rein to drain the marsh for their citrus groves, pastures, and vegetable farms. Rivers were viewed as convenient vehicles to remove the unwanted, so it was commonplace for farms to dump water laden with chemicals and cattle waste into the river.

Over the years, these accepted abuses devastated the area of marsh in which rainwater could be stored naturally and filtered before it entered the river. It also placed pollution-generating agriculture at the water's edge. Many farms and ranches, including A. Duda & Sons, are still permitted by the state to pump their runoff into the upper St. Johns basin.

To drain the marshlands for pasture and cultivation, ranchers and farmers along much of the St. Johns River constructed tall earthen dikes from mud dug out along the river bed next to the dikes. Behind the dikes, the lowlands are crisscrossed by a network of ditches which feed into long canals. The feeder canals connect the ends of the ditches to the dikes at pumping stations. Whenever the ditches and canals get full of water, the ranchers turn on the pumps and pump the runoff directly into the St. Johns River system.

During dry periods, ranchers and farmers can irrigate these fields from wells or other sources. A. Duda & Sons often use treated water, or effluent, from the Brevard County waste water treatment plant at Wickham and I-95 to irrigate the fields of their sod farm. According to state officials, this effluent can contain many pollutants including high levels of nitrates and phosphates. State investigators have seen and smelled this effluent running directly into the St. Johns River system from the canal network.

In an effort to focus the public's attention on the runoff problem in 1991, Dave Sheriff a Melbourne fisherman and engineer took Florida Today reporter John Nagy to tour Lake Winder, parts of the St. Johns, and the canal systems. However, the Florida Today paper failed to report on the issue.

Brevard County Commissioners confronted the issue in 1991 when it set up a new stormwater management department and assessed stormwater fees to manage stormwater runoff from polluting the water bodies. Feeling additional bureaucracy and fees were not the solution to any problem, most taxpayers objected to the new department. Fees ranged from $36 for properties located in unincorporated areas to $7.53 per acre for agricultural land. However, included with the ordinance was a resolution containing an exemption clause that allowed

agricultural interests to not pay any stormwater management fees. According to a U.S. Department of Agriculture official, landowners such as the Dudas, the Tuckers, the Kempfers, and some Platts fit this exemption criteria and pay no stormwater management fees. (Please see Chapter 23)

Still trying to bring attention to the out-of-sight-out-of-mind issue, in April of 1992 several concerned citizens gathered a group of reporters, environmentalists, and state officials to tour Lake Poinsett, Lake Winder and part of the St. Johns River. As airboats glided over Lake Poinsett, the beauty of the wide, blue lake disappeared into the narrow St. Johns River, clogged with hydrilla and algae. Only an airboat could travel through this since the river and its lakes are so choked with plant growth. Boats equipped with standard motor propellers could not make it more than 10 feet before becoming ensnarled in the dense vegetation. Expectations of another blue expanse of water at Lake Winder were dashed when the airboats came upon acres of brown, putrid and decaying vegetation caused by recent chemical spraying. (See Chapter 4)

For those individuals that would like to tour the St. Johns and see its destruction first hand, air boats can be rented.

 

 

On May 5, 1992, members of SAVE the St. Johns, joined by supportive citizens, addressed the Brevard County Commission asking for help in saving Brevard County's part of the St. Johns River and its lakes from pollution. Before responding, Commissioners Carol Senne and Sue Schmitt-Kirwan verbally attacked Truman Scarborough for putting the St. Johns Pollution item on the agenda for discussion. S.A.V.E. asked commissioners to appoint a task force, including citizen volunteers, to be set up for the purpose of finding solutions to stop the pollution of Brevard's priceless fresh water resource. The Board requested County staff to set up a work shop, issue a report and hold another meeting in August 1992. Their findings had not been released at the time of publication.

In the past the Board of County Commissioners tended to disregard the St. Johns River and the delicate lands adjoining it. Lake Washington is surrounded by land zoned for housing developments. Lake Washington, Lake Winder and Lake Poinsett are all bordered by Viera's planned 38,000 acre development. And the wetlands on the edge of Lake Poinsett are threatened by a housing development already permitted by the Brevard County and the St. Johns River Water Management District.

The St. Johns River Water Management District is ultimately responsible for controlling the conditions of the St. Johns. This includes the quality of its water and the actions that affect it for 19 Florida counties. Controlling harmful development around the river and agricultural runoff into it is the obligation of the District's Board. And yet eight of nine of the current Board members are real estate developers, farmers, ranchers or work for developers.

The District is repairing some of the damage already done, but at tremendous cost to the taxpayer. The goal is better flood control, cleaner water, and natural life sustaining marshland. Environmentalists would like to see marshes reminiscent of those at the turn of the century before they were drained to the brink of extinction for agricultural use. Farther down river from Brevard County, a District project begun in the 1980's shows promise. 125,000 acres of farmland was purchased and then flooded with a sheet of water, in hopes the land would return to its former marsh, like similar projects surrounding the manipulated Kissimmee River. But the cost of the reclamation project tops $165 million.

Bob Lagasse of the St. Johns River Water Management District land acquisition department states "Land is being purchased south of SR192 but no land has been purchased north of SR192 to Lake Poinsett, which includes the land around Lake Washington. Plus no projects are planned to reclaim the marshes in that area." Why is this area being excluded?

Some of this land may already belong to the state, according to some state officials, since it may be considered "sovereign land" from the time when it was a natural marshland. Any land determined to belong to the state by the Department of Natural Resources' title searches could be reclaimed - saving hundreds of millions of dollars in public funds instead of buying back diked and drained land north of SR192.

Learning to reclaim wetlands from development, farming, and ranching, is a costly and extensive operation. South Florida found this is a hard lesson - it nearly cost them the Everglades, long considered a useless swamp.

The U.S. Attorney's office in Miami sued the South Florida Water Management District and the Florida Department of Environmental Regulation in 1988, charging state and federal water-quality regulations had been violated by allowing agricultural runoff to damage Loxahatchee Refuge and Everglades Park. The U.S. Attorney's office won the case. As a result, the South Florida Water Management District had to come up with a plan to save the Everglades. This plan involves the purchase of 35,000 acres of farmland to convert into filter marshes.

If officials act now to control the development and pollution of Brevard's St. Johns River water system, this will save the taxpayers from having to pay later to reclaim the land from development and clean up the marshes as they are required to do in South Florida.

The St. Johns River Water Management District is a taxing authority plus it receives state money. Of their over $100 million budget around $33.6 million came from property taxes in fiscal year 1991/1992. Seven of the last eight years they have raised their millage rate. In 1985 Brevard County paid around $322,000 in taxes and will pay approximately $4.8 million in 1992; a 1,390% increase.

The District receives property tax money from a total of 19 Florida Counties and lumps it all together in one budget. The money is not allocated back to each County based upon its share paid in; but is spent on individual projects that the Governing Board deems worthy. Brevard County is the third largest contributor of tax dollars around $4.8 million a year. But when the Melbourne St. Johns River Water Management District office is called, it is obvious they are understaffed. Because of the low budget only one person is allocated to check the quality of water being pumped off the farms and ranch lands directly into the St. Johns River System. As a matter of fact due to the size of their territory, as of April 1992 no water tests had been done in Brevard County for over one year.

Concerned taxpayers and environmentalists want answers, "Why can't money be allocated to Brevard County to test the water regularly? Why can't desperately needed tests be run to find out what is destroying Lake Winder?

One such property owner Leroy Wright, president of S.A.V.E. the St. Johns River, remains optimistic about finding a solution. Following the July 1992 fish kill he told the Florida Today paper, "We are going to find a way to bring the agricultural interests in line with sound environmental practices. That will stop the majority of the fish kills."

+ If drinking water is limited by pollution to the St. Johns River system, will it be the factor to halt development and economic growth?

Will the cost of treating the drinking water become prohibitive if pollution is allowed to continue?

Can the St. Johns really be saved through the efforts of groups like S.A.V.E.?

The lakes along the St. Johns River in Brevard County are deteriorating. Ranchers and developers are allowed to pump their contaminated runoff directly into the river. Thousands of acres adjacent to the river that once cleansed the waters are systematically being diked and drained. Land from Hwy SR192 to Hwy 520 is excluded from reclamation. WHY?

23

WATER DOESN'T FLOW UPHILL,

BUT FEES DO

"Well, I never thought my vote could be bought , but now it has. For $36," began Rick Morris of Titusville in his letter to the editor of the Florida Today. "I intend to vote against every incumbent from county to state who voted to raise my taxes $36 a year for water drainage and then had the gall to tax some of the polluters only $7 an acre. If they want to raise my taxes $36 a year, then give me better police and fire protection. It appears to me that three of the Brevard County Commisssioners can't hear any better than the Democrats in Tallahassee can."

The St. Johns River, a valuable drinking water resource as it flows through the western portion of Brevard County, has experienced severe fish kills in recent years due in part to polluted rainwater runoff. Drainage canals constructed behind diked farm and pasture land flow into the St. Johns River and its lakes throughout the County. These canal networks carry excess rain water directly into the river and are often assisted by farmers' pumps. This runoff appears to be contaminated with fertilizers and cow manure - nutrients that feed the overabundant plant growth that clogs the water, later killing the fish.

Monitoring the quality of the runoff as it flows into the river is the responsibility of the St. John's River Water Management District. However, according to the District's Carol Fall, the office only has a one person staff, so none of the pump discharges in Brevard County had been tested for over a year. But she adds, "The landowners are responsible to do a self test four times a year." (See Chapter 23)

The St. Johns River Water Management District is listed separately on your Property Tax Bill. From 1985-1990 their millage rate has increased 695%, with their budget increasing from approximately $322,363 to approximately $4.8 million. Taxpayers want to know: why is this money not being spent to protect the quality of the fresh water and to protect the wetlands and marshes around the St. Johns River System?

This District is regulated by a Board appointed by the Governor. Eight of the nine members are either contractors, real estate investors or developers, citrus grove owners, cattle ranchers or work for major developers. Refer to the end of this chapter for a listing of the Governoring Board members and dates their terms expire. If you would like a fairer representation on the Board, make your concerns known to the Governor.

Under only a requirement from the state to submit a plan to manage stormwater, the County Commission took up the issue at an August 26, 1991 meeting. The concerned public filled the auditorium to capacity, leaving standing room only. The Board's approach to the problem troubled most of the crowd. They planned to create a new stormwater management department to control polluted runoff and enact special assessment fees on all county property to fuel it.

During the portion of the meeting devoted to public input, fifty distressed citizens spoke out against the Board's plan and only six spoke in favor of it. Time after time Brevard taxpayers addressed the indifferent Commissioners with comments like, "I believe in clean water, but I don't believe in another bureaucracy to eat up my tax dollars." and "Let the St. Johns River Water Management District, that has over $100 million budget, address this problem."

The vote was four to one with Commissioners Thad Altman, Carol Senne, Sue Schmitt-Kirwan, and Karen Andreas voting for the program. Commissioner Truman Scarborough opposed the additional layer of bureaucracy and voted against it. The stormwater management department and the accompanying fees were approved.

The City of Palm Bay likewise enacted a Stormwater Program in August of 1991, against a tide of opposition. By December they abandoned the program. Councilman John Scianna led the fight saying, "the city-run stormwater program would duplicate the efforts of the St. Johns River Water Management Plan." Scianna added, "I still feel the (city's) motivating factor was an insatiable desire for revenue. I'm proud Palm Bayers stood up against that."

Even though Brevard County residents stood up against it, all property owners now had an additional item on their yearly tax bills: homeowners in unincorporated Brevard County would pay $36, city homeowners would have their total fee determined by their city government, commercial business owners would pay $36 per 2,500 square feet of impervious area, and agricultural landowners would pay $7.53 per acre.

It did not become publicly known until April of 1992, that a way had been implemented so agricultural lands, a major source of runoff, could be exempt from paying any stormwater fees. Attributed to Commissioner Carol SenneÙ and Teresa Kramer, the original Director of Stormwater Management, a resolution was added to the Stormwater Ordinance allowing an exemption provision.

The exemption can be applied if the agricultural landowners comply with a Soil Conservation Service Plan. Basically, a Plan has to do with the amount of fertilizers that are applied to the land and how much water can be utilized for irrigation. But it generally has little to do with stormwater runoff management.

The Stormwater resolution states, "In order for the agricultural pursuit to be eligible for an exemption, the property owner must demonstrate that there will be no discharge to a public stormwater drainage system." An official in the Stormwater Department was asked why agricultural interests can't pump water into a County maintained ditch that leads to a lake or river, but a rancher can pump the water directly into a lake or river? The answer was, "We don't maintain the lake or river." Something seems odd here. The County wants to preserve a ditch and not a river or lake?

"Something seems to be wrong with this stormwater resolution and ordinance," Don Williams of Cocoa commented. "If there is going to be an exemption, then everybody should be able to qualify for the exemption. If everybody can't file, then there should be no exemption and every property owner should pay their fair share."

According to an official at the Soil and Water Conservation District, many Brevard County landowners have Soil Conservation Plans. Large landowners on file with the Soil and Water Conservation District, exempt from paying any stormwater fees on their agricultural farm land, include A. Duda & Sons, Deseret Ranches, the Tuckers, the Kempfers, and some Platts.

Without being asked, Deseret Ranches decided to be a good neighbor to the St. Johns River System by filtering their runoff before it is pumped into the system. This is accomplished by the construction of retention ponds, one as large as 505 acres, to hold the runoff long enough to settle out the organic matter before the water is pumped into the river and lakes.

The County's stormwater management department has extended its function beyond controlling the pollution of runoff. Without the knowledge of the Commission, County Attorney Bob Guthrie notified the St. Johns River Water Management District in 1990 that it was the County's intention to accept the responsibility for the maintenance of the private stormwater management system of Sabal Hammocks, a development near Lake Poinsett and the river.

On May 5, 1992 Leroy Wright, president of S.A.V.E. the St. John's River, spoke to the County Commissioners expressing S.A.V.E.'s opposition to the housing project and County maintenance of the stormwater system. He said, "We don't want any free gift of a golf course in exchange for storm water management." Leroy Wright then told the Commission, "Reconsider this obligation that the County attorney has put on you. He has put a few on you in the past that have not turned out well for the public."

Marty Smithson, director of the County's stormwater department, defended County maintenance of the Sabal Hammocks system because "private systems do have a record of failure."

+ Why should County taxpayers pay to maintain a developer's stormwater system for a private housing development?

When are ranchers going to construct retention ponds like the ones at Deseret Ranches?

24

WATER, WATER EVERYWHERE BUT NOT A DROP TO DRINK

"Utilizing Lake Washington as its source, the city of Melbourne treatment facility produces good water quality, and there is no good reason to justify abandoning it as a source," wrote Mary Clark, state hearing officer.

The South Brevard Water Authority is a water utility that was created in 1983 after the Brevard County Commission and other committees prompted Brevard County's Legislative Delegation to sponsor a bill setting up this Water Authority. At that time the Board of County Commissioners consisted of Joe Wickham, Val Steele, Lee Wenner, John Hurdle, and Gene Roberts. The Board purchased a water supply study completed by two firms, one of which was the engineering firm, Post, Buckley, Schuh & Jernigan, Inc. This study recommended the set up of this Water Authority.

This legislation set up what many believe to be a water monopoly whose power is second only to the power of the Brevard County Commission itself. The South Brevard Water Authority has total power over the water supply and treatment of all the fresh water for South Brevard. Their area includes all incorporated and unincorporated areas south of the Pineda Causeway.

Around 61% of its operating budget results from water fees paid by Melbourne water customers. The other 39% is paid by Brevard County property taxes. The Water Authority's 91/92 budget was $890,667 with a planned 92/93 budget of $765,155.

From the very beginning this Water Authority has denied the City of Melbourne's permit to construct a reverse osmosis plant to treat well water. In 1983, Melbourne was 30% through the design of its plant, which would have been finished in 1985 at a cost of around $11 million. The Authority put a stop to this reverse osmosis plant. And instead, this Authority decided that Brevard County needed a new source of water. For nine years the South Brevard Water Authority has pursued other sources of water. To date this Authority has spent millions of dollars and has not supplied one additional drop of water to the residents of South Brevard.

The City of Melbourne believed that this Authority was wasting public funds and asked Brevard County's Legislative Delegation in December 1990 to abolish this Authority. Little did they know the opposition they would face. Present at this meeting were some very formidable foes: Attorney Bob Nabors, representatives from the Melbourne Board of Realtors, and representatives of the Brevard Home Builders Associations. These groups opposed the abolition of the Authority.

The Legislative Delegation sided with these special interest groups.

As of July 1992, the City of Melbourne had received its Department of Environmental Regulation permit and its St. Johns River Water Management District permit to construct a reverse osmosis plant. They had all the engineering and plans ready. They even had the bond money ready to go, all they lacked was the permit from the South Brevard Water Authority. Why could they not obtain the reverse osmosis permit?

A past official of the South Brevard Water Authority privately said, "If you (City of Melbourne) are successful (in purifying water) then we will never be able to go to Osceola County for water."

Growth in any Florida County is limited by its water supply. Each resident uses approximately 200 gallons of fresh water a day. Powerful, influential people in Brevard County want immense growth at any cost. They have no problem seeing the ocean side community of Melbourne becoming a clogged up Ft. Lauderdale.

The South Brevard Water Authority states that water can be brought over from Osceola County at around $49-$55 million. City of Melbourne officials believe the charge will be double that at $98-$110 million. They say the original Water Authority estimate left off some very significant items like:

1). the charge to buy the 20 mile right-a-way property from Osceola County to Brevard County.

2). the approximate $7 million charge to buy the right-of-way and design and construct the hook-up lines from I-95 to the Lake Washington plant.

If this project is permitted by the St. Johns River Water Management District, officials of the City of Melbourne believe the overall cost of 1,000 gallons of fresh water will jump from around $2.00 to $5.00 - more than double.

Besides the Water Authority wasting money seeking a substitute water source, they have not been sending out Requests for Proposals to select a less expensive engineering firm than Post, Buckley, Schuh & Jernigan, Inc. who have worked on the Osceola Project since 1983.

Since the City of Melbourne water users fund 60% of the Authority's budget, the City of Melbourne brought this to the attention of the Water Authority and the Brevard County Commission who approves their budget. The City requested that the Water Authority use a less expensive engineering firm in order to save their water customers some money. The South Brevard Water Authority continues to use Post, Buckley, Schuh & Jernigan, Inc.

Where has the South Brevard Water Authority tried to acquire water the last nine years? Initially they tried to drill wells around Hollopaw in Osceola County. This area is in the South Florida Water Management District. To their amazement the plan was not approved. The Authority was told that they had not exhausted all their local sources of water.

Undeterred, the Water Authority appears to be tackling easier prey, closer to home by trying to obtain water from within their own District, the St. Johns River Water Management District. So they tried to get wells drilled in the Bull Creek Wildlife Management Area in east Osceola County. This 23,000 acre state preserve is largely wetlands and home to 20 protected plant species.

On May 12, 1992 Mary Clark, a state hearing officer, after listening to five weeks of expert testimony, turned down the South Brevard Water Authority's request. She cited likely damage to wetlands, the fact that Brevard County already had a water source, Lake Washington, and the Authority was trying to substitute one source of water for another as the main reasons for denial.

Clark said, "There is no good reason to justify abandoning it (Lake Washington) as a (water) source."

The St. Johns River Water Management Board agreed with her. However Jesse Parrish, citrus grove owner in Titusville, who is a member of the Board, disagreed. Del Travis, executive vice president of the Home Builders and Contractors Association of Brevard also disagreed with the Board's decision. Joe Wickham, a member of the South Brevard Water Authority adamantly defends the Authority's right to pursue these wells.

And a very significant ally agreeing with Jesse Parrish, Del Travis, and Joe Wickham is the Florida Today Editorial staff. In the newspaper's editorial section, they recommended that the South Brevard Water Authority appeal this decision.

Melbourne Mayor Joe Mullins agreed with the hearing officer and said the ruling "was right on line. We (South Brevard) have a viable source of water; we have a treatable source of water."

What many people don't know is that the South Brevard Water Authority learned that they would have to set up a reverse osmosis plant in Osceola County to purify the water they wanted to acquire. So 20 miles beyond Lake Washington, the very Authority that has denied the City of Melbourne their osmosis plant for nine years, will have to build one. Precious time and millions of tax dollars have been wasted. Back in 1985 the City of Melbourne could have had their reverse osmosis plant finished at a cost of $11 million. Something is not right here.

Many taxpayers agree with the decision of the St. Johns River Water Management District Board to not allow another water supply outside the County. It is a popularly held opinion in Brevard County that the South Brevard Water Authority should be abolished. And if not abolished then its priorities changed to:

1). saving the wetlands around the County's fresh water resource, the St. Johns River and its lakes - because reduced quantities of wetlands are believed to be one reason for the reduced amount of available water.

2). protecting the quality of Brevard's current fresh water supply by working with Brevard County Commissioners to limit the housing developments on the wetlands and marshes of Brevard County. These marshes and wetlands surrounding the St. Johns River and its six lakes are filters that purify the water before it runs into the fresh water drinking supply of Lake Washington.

If the South Brevard Water Authority is ever successful in its attempt to abandon Lake Washington as the drinking water supply, then the lake will no longer need to be protected from runoff pollution. The land around Lake Washington might be developed or used more by agricultural interests; thus accelerating its destruction just like Lake Hellen Blazes, Little Sawgrass Lake, Sawgrass Lake and Lake Winder have been destroyed. It is easy to see some peoples' motivation to push for a new water source.

This water war between the two counties has raged for almost a decade and has included two lawsuits, a Florida Supreme Court ruling and four administrative hearings. According to an Orlando Sentinel article by Rene Stutzman, "even after Tuesday's May 12, 1992 ruling by the St. Johns Board, there is a good chance the dispute will continue on a different battlefield. The South Brevard Water Authority could seek to overturn the water board's ruling by appealing to the Governor and state Cabinet or state appeals court."

The South Brevard Water Authority asked for a rehearing before the St. Johns River Water Management District. It appears in hopes that the District will overturn their original disapproval of the Authorities' attempt to abandon Lake Washington as South Brevard's main drinking water supply.

So the fight goes on with the taxpayer in the middle.

+ Should the people of Brevard County ask the Brevard County Legislative Delegation to sponsor a bill abolishing the South Brevard Water Authority Board?

 

25

YOU CAN'T TELL A DUMP

BY ITS COVER

"Why didn't the Commissioners go to the County attorney's office three years ago if they (had the evidence they needed) and truly wanted to shut down this landfill?" questioned Jack HoutsÙ , the County code enforcement officer who reported the violations, in an interview with The Reporter.

A county generates tons of garbage each day, and despite recent recycling efforts, the majority of it ends up in a landfill. But household garbage is only a portion of the waste created each day, the rest comes from sources such as construction, land clearing, and industry.

A 25 acre landfill was established on Minton Road in Palm Bay in 1984 by Cocoa real estate businessman Jack Hurt. According to The Reporter, "Dump users are said to include county and state, Commissioner Thad Altman's father, who is a land developer and does heavy equipment work, many Brevard construction firms, and trucks from West Palm Beach and Hernando County. Neighbors complain about noise and dust day and night and fear their health may be endangered by some of the materials being dumped and contamination to their well water. They direct most complaints to Commissioner Carol Senne although the dump is located in Altman's district."

Some long suffering homeowners began to call agencies within the State of Florida and raising hell with County officials about what they thought were illegal dumping activities. Due to public pressure, the county had to appear like they were doing their job.

In June of 1990, Brevard County sought a temporary emergency injunction to shut the landfill down for reasons of public health and safety. However, the judge denied the injunction because the "emergency" was hard to justify since the County had allowed the landfill to operate for almost six years.

Then in an August 7, 1990 article, John Nagy of Florida Today uncovered that "a Brevard County code enforcement officer found violations at a private Palm Bay area landfill in 1986 but was told by his supervisor to discontinue an investigation."

"Former code enforcement officer Bill Insco inspected the Melbourne Fill and Materials, Inc. landfill on Minton Road on July 22, 1986, and found four violations of county codes, according to his case report. The violations included:

Operation of a business without an occupational license.

Illegal disposal and burial of illegal materials.

Operation of a landfill in violation of zoning ordinances.

Operation of a landfill without minimum setbacks or a buffer zone.

"Insco also wrote in his report that landfill manager James Riley told him the business was charging customers a fee to dump at the landfill, a violation of the county's solid waste ordinances.

"...Insco wrote in his report that his supervisor, Pat Martin, phoned Hurt on July 29, 1986 and told Hurt about Insco's findings."

"After another phone call to Martin from Hurt, Insco wrote: "(I) was advised to discontinue any enforcement actions at this time and that (the) complaint would be resolved between attorneys representing the complainant and violator."

"'Violation of Brevard County codes...were not addressed,'" Insco wrote. Insco resigned shortly after being told not to continue his investigation. 'I got so damned frustrated,' said Insco, who specialized in investigating illegal landfills in Delaware before coming to Brevard."

Then from a later article in The Reporter, referring to the failed court injunction, "It is a curious paradox that the County fired two code enforcement officers, Jack Houts and Pat Martin, for not shutting down this dump when its own legal staff failed to do so.

Houts appears to believe that he was used as a scape goat because the whole affair was badly bungled."

Operating under state Department of Environmental Regulation (D.E.R.) and St. Johns Water Management District permits as a "construction and demolition landfill," the dump was cited twice by D.E.R. for violations but later found to be in compliance. During September of 1990, D.E.R. conducted an inspection of the landfill and no causes for unusual environmental concern were discovered.

Homeowners surrounding the landfill continued to press the County on the dump which now had trash piled as high as thirty feet. In a February of 1991 surprise visit to a homeowners meeting, Commissioner Thad Altman addressed the residents of Heild Road and Carriage Gate subdivision and told them not to worry about the landfill. He revealed that the County had been planning for the last eighteen months to condemn and purchase the dump and the neighboring depreciated properties for the purpose of a golf course and county park. They planned to eliminate the thirty foot high trash pile by bulldozing it into a lake in the rear. The venture would be financed from the Solid Waste Fund (garbage collection fees) so that all County taxpayers would share in the cost of this bail-out.

Bart DeNitto who is building in the Carriage Gate 1 development said, "Commissioner Carol Senne called me and asked me to visit her office. While I was there she asked me to attend a County Commission Meeting. She explained to me how to fill out the speakers' cards. Commissioner Senne told me, 'All you have to do is suggest that the landfill is a health hazard, the Commission will vote to take it over that day and when everything settles down the county will build a park or golf course.'" DeNitto chose to not do this.

DeNitto then asked her if the County is in such bad shape financially, where will the County get the money to condemn the landfill and buy the land? Senne replied, "There is plenty of hidden money in the Solid Waste Budget."

Area homeowners began to see possible reasons for allowing the dump to go unchecked for so long, despite homeowners' complaints. If Jack Hurt were allowed to run the dump, land and housing prices would fall. Then when the time came, the County could condemn the land for public use as a park or golf course, and buy the property for even less. This would also have the side benefit that speculators who were aware of the project could buy surrounding property at a low price, then once the golf course or park went in, their property values would escalate. When asked if they have any interests in Brevard properties, Commissioners Carol Senne, Thad Altman, and Sue Schmitt-Kirwan refused to comment.

An article in The Reporter on February 14, 1991, indicated a County purchase "might solve some other problems in the area as well", such as a questionable large mining pit adjacent to the dump. "A County buy-out would put all those problems to rest or transfer them to the taxpayers." Recent letters from Rep. Harry Goode (D) of Melbourne to Commissioner Sue Schmitt-Kirwan and expressed his exasperation with all the buck-passing between the county and state agencies, and urged immediate action to protect the safety of local residents. They (the residents) are also apprehensive about a hearing scheduled for March 21 between the County and the owners of the dump. This will be a mediation hearing, and residents fear there will be a deal made behind closed doors that will not consider their interests. If the County is seriously considering a golf course, using solid waste funds, the public would have no say in the matter."

Finally bowing to pressure, the County took the landfill operator to court in a firmer effort to close the landfill. According to The Reporter, "The County attorney contends that the Minton Road Landfill is illegal because it violates the County's monopoly to operate or permit all solid waste facilities in Brevard, that it is a commercial operation in an area not zoned for commercial use, and," referring to the new tougher clean debris and land alteration laws, "that Hurt failed to acquire the permits required by the ordinances passed last year."

The attorney representing Jack Hurt argued, The Reporter continued, "that the County gave up any legal right to shut the landfill down by not requiring permits from Hurt when he began his operation in 1984. By allowing the operation to continue unimpeded for six years the County waived compliance with the ordinance giving the County a monopoly. The County was trying to apply ordinances passed in 1990 after-the-fact to deprive Hurt of pre-existing property rights to a legally established non-conforming use."

He also believed the County's prosecution was politically motivated, saying, "If they (the County) had any regulatory authority, they haven't bothered to exercise it."

Leading up to a trial, lawyers from both sides scheduled depositions from individuals, including Jack Hurt, Commissioners Thad Altman, Carol Senne, and Sue Schmitt-Kirwan.

Jack Houts, who was a code enforcement officer for the County at the time, stated in his sworn testimony that he and another officer, Pat Martin, were summoned by Commissioner Altman in 1987 or 1988 to brief him on the landfill. He told the Commissioner that to shut the landfill down, it was necessary to find out if fees were being charged and that they needed to find someone who would give an affidavit that he was being charged. He also said that Commissioner Altman never told them that his father, T.A. Altman, paid to use the landfill.

Thad Altman confirmed in his deposition that his father, T.A. Altman, told him in 1987 that he paid to dump at the Minton Road Landfill. He had no idea why the County didn't take action before 1990 to shut the operation down. He also didn't think anyone knew for sure what had been dumped over the years.

Later in 1991 Bart DeNitto of Palm Bay, had a meeting with Thad Altman and asked him, "This dump is in your district, why are you not helping us?" He said Altman told him his father had dumped there and he just didn't want to get involved. Mr. DeNitto told Altman, "That's your job to be involved."

"Code Enforcement Officers Houts and Martin both said that Assistant County Attorney Ken Crooks didn't request the code enforcement files pertaining to the dump until the day following the court hearing requesting an injunction, and yet these files contained information on violations.

In Jack Hurt's deposition he alleged that Roy Pence, an adjacent landowner was trying to run him out of business.

With only a portion of the depositions taken, and just a few days before Commissioners Carol Senne and Sue Schmitt-Kirwan were to be deposed, a quick out of court settlement was reached. Much to the consternation of taxpayers following the issue closely, this settlement was never placed on the County Commission agenda listing so the public had no public knowledge of the upcoming discussion. Instead, it was brought up at the end of a March 25th meeting and accepted.

The settlement included:

The County paid landfill operator Jack Hurt $100,000 for lost business.

The "Plaintiff (Brevard County) shall forthwith take such action to complete the closure of the landfill so that the closure meets all requirements, laws, ordinances and regulations of the Department of Environmental Regulation, Environmental Protection Agency, Brevard County and all other governmental and environmental agencies applicable."

"The cost, if any, of finalizing closure after December 31, 1991, shall be borne by Plaintiff (Brevard County).

In November of 1991, Commissioner Truman Scarborough, Floyd Rogers and George Draper had a meeting with Assistant County Attorney Ken Crooks and Solid Waste Manager, Dick Rabon. At this meeting Ken Crooks was asked why the County could not close down the landfill if there were all these county violations? He said, "We were never able to prove that they were charging people to dump."

This excuse rang hollow as a few obvious steps could have been taken by Assistant County Attorney Crooks: speak with each County Commissioner and inspector involved to see what they knew, ask departing truck drivers if they had paid, send a truck to the dump to see what was required or asked of the driver. It appears that the County did not want the question answered.

Taxpayers felt betrayed by the County for having to pay the operator to close down what appeared to be an illegal dump. They were further angered by the fact that the County put themselves into the position of responsibility for closing down the private landfill, which could run the bill up even more. In December of 1991, Assistant County Attorney Ken Crooks assured concerned citizens that the taxpayer's liability was minimal. And in an effort to prove this, he wrote a letter to the Florida Department of Environmental Regulation, asking them to clarify who is responsible for closing this landfill.

To taxpayers this seemed like an odd time for Ken Crooks to be clarifying such an important question, after he had drawn up and advised the County to accept a settlement that called for the County to close the landfill and for the County to pay any costs associated with that closing.

Giving concerned taxpayers an opportunity to ask questions, Commissioner Truman Scarborough placed the Minton Road Landfill on the December 17, 1991 Commission agenda. At this meeting, Commissioner Carol Senne delivered a monologue and read aloud D.E.R.'s reply to Assistant County Attorney Crooks.

The letter stated that the permittee (Jack Hurt) was liable to close the landfill. Carol Senne implied that this got the County off the hook as far as having to pay to close the landfill regardless of what the settlement called for. She said, "The only thing the County will be paying for is groundwater monitoring." She continued, "The County will be monitoring to make sure Mr. Hurt complies with the D.E.R. regulations."

Much to the public's shock, after waiting for over six hours to speak, any discussion of the Minton Road Landfill was tabled at County Commission meetings for six months by a majority vote of Commissioners Carol Senne, Thad Altman and Sue Schmitt-Kirwan. (See Chapter 26)

Commissioner Schmitt-Kirwan then left in a hurry, telling the public that "this item has been voted on in the past" and that "there are legal agreements and documents available for anyone who wants to see them."

At an April 1992 meeting, the County Commission voted unanimously to undertake closure of the landfill as specified in the settlement contract. It called for the County to pay for the cost of closing the landfill to meet all Department of Environmental Regulation and Environmental Protection Agency regulations. With a cost of meeting those standards estimated at $400,000, the County aimed to sue Hurt later to recover the cost of the work. To taxpayers tired of footing the bill for costly lawsuits the only winners in that deal would be the attorneys handling the lawsuit. (See chapter 15)

In a June of 1992 interview with The Reporter, landfill operator Jack Hurt referred to the phrasing in the settlement regarding those closure costs, "The cost, if any, of finalizing closure after December 31, 1991, shall be borne by Plaintiff (Brevard County)." Hurt told reporter Carol Hayes that Assistant County Attorney Crooks insisted upon adding the phrase "if any" to the final version of the Settlement Stipulation. "It would help keep public outcry down," Hurt said Crooks told him. "I told my attorney I had no problem with the word change as long as the County met my bottom line figure."

The final chapter is yet to be written - and paid for by Brevard taxpayers. By July 1992, it was estimated to cost around one half million dollars to close the private landfill.

Bottom line costs of the Minton Road Landfill might include the expense involved in monitoring test wells for ten years after the closure, as required by D.E.R. If another public golf course located on the dump site and surrounded by a private housing development is in Brevard's future, costs of land acquisition may be added.

+ Why didn't Assistant County Attorney Crooks want to know the facts contained in the code enforcement officers' reports?

Why did the County settle out of court so quickly? This landfill had been allowed to operate for over six years - what would a few more days have meant?

Did Assistant County Attorney Ken Crooks act in the taxpayers' best interests when he included that the County pay for closure of the landfill?

Could some information from the depositions that were avoided by a quick settlement have proved embarrassing?

CHAPTERS 16-20 CHAPTERS 26-30