STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1734

)

)

CANOE CREEK PROPERTY OWNERS )

ASSOCIATION, INC., and DEAN )

DEVELOPMENT COMPANY, INC., )

)

Respondents, )

)

and )

) WESTWOOD COUNTRY ESTATES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on August 29 - 31, 1990, in Stuart, Florida.

APPEARANCES

For Petitioner: John J. Fumero, Esquire

3301 Gun Club Road Post Office Box 24680

West Palm Beach, Florida 33416

For Respondent: Manuel Farach, Esquire

Post Office Box 778 Stuart, Florida 3499-50778

and

Don Mooers

Qualified Representative Post Office Box 1147 Palm City, Florida 34990

For Intervenor: Terry E. Lewis, Esquire

Robert P. Diffenderfer, Esquire Messer, Vickers, Caparello,

French, Madsen & Lewis, P.A. 2000 Palm Beach Lakes Boulevard Suite 900

West Palm Beach, Florida 33409 PRELIMINARY STATEMENT

The South Florida Water Management District (District) filed this proceeding against Canoe Creek Property Owners Association, Inc., and its predecessor in title, Dean Development Company, Inc., to require modifications in the surface water management system of Canoe Creek. Dean Development failed to participate in the case. There are disputes between the Property Owners Association and the Canoe Creek developer over whether the system has been turned over to the property owners. Those disputes must be resolved elsewhere. Canoe Creek is a mature 86.5 acre residential subdivision. It is immediately east of and adjacent to Westwood Country Estates, an 82.1 acre residential development which is in the early stages of development.

This action is the second of two related proceedings initiated by the District. The prior matter began in August 1988 when the District issued a Notice Of Violation to Westwood Country Estates, Inc. (Westwood), claiming it had made an unauthorized discharge of storm water which had an adverse impact on Bessey Creek. Westwood's unauthorized discharge occurred after a storm event, when the berm along Westwood's southern boundary failed, and surface water began to flow south from that breach into Bessey Creek.

As part of the resolution of the Notice Of Violation proceeding, Westwood filed, on or about October 14, 1988, an application with the District to modify its surface water management system. Westwood's consulting engineer had determined, when preparing the permit modification application, that an additional 52 acres of land immediately to the west of Westwood drained onto Westwood, and that the water from that land needed to be incorporated into the Westwood surface water management system. At Westwood's eastern boundary is a north/south berm which separates it from Canoe Creek; there is a weir structure at about the mid-point of the berm, which has been permitted by the District.

Westwood's permitted surface water management system discharges easterly through the weir into the Canoe Creek surface water management system and ultimately into Bessey Creek.

The District's staff reviewed the application and issued a staff report proposing to approve modification of the Westwood permit as proposed. During the period available to affected persons to challenge the District's proposed action, the Canoe Creek Property Owners Association, Inc., requested a formal hearing on the Westwood permit modification application. That proceeding was heard in Stuart, Florida, on August 1-4, 1989. The Hearing Officer recommended that Westwood's permit modification be granted, because it was consistent with the District's rules and criteria, and this Recommended Order was adopted by the District's Governing Board in January 1990. That Final Order of the District was affirmed by the Fourth District Court of Appeal on May 29, 1991. Canoe Creek Property Owners Association v. Westwood Country Estates and South Florida Water Management District, Case 90-0513, So.2d .

FINDINGS OF FACT

1. General.

   
   

   1. The Westwood permit modification contemplated a series of improvements, not only in its own system, but also to Canoe Creek's surface water management system. These improvements were designed to take into account the previously unknown surface water flows from the 56 acres to the west of Westwood. A special condition of the Westwood permit modification was that Canoe Creek's permit and surface water management system be modified to incorporate changes to accept these additional water flows.

      
      

   2. The District issued its Administrative Complaint and Order/Notice Of Intended Modification of the Canoe Creek permit, which initiated this case, on February 2, 1990, in an effort to force the incorporation of specific improvements of Canoe Creek's surface water management system to fully integrate it into the area-wide system. Although the procedural contexts of the two cases are different, from an engineering point of view, the same issues are raised in this proceeding by the District to require Canoe Creek to modify its surface water management system as were raised in the earlier proceeding in which Westwood sought, and Canoe Creek opposed, modification of the Westwood surface water management permit so that Westwood's system would accommodate off-site flows. The seven specific modifications proposed for Canoe Creek are:

      
      

      Station 0+00 (southern entrance road): Replace the existing 24 inch diameter CMP culvert with two 30 inch diameter CMP culverts.

      
      

      Station 7+69 (main entrance road): Replace the existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts. If the existing 24 inch X 34 inch Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location.

      
      

      Station 13+00 (outfall structure): Verify that the existing structure was built as designed and then increase the weir length to 6.1 feet at crest elevation

      10.25 feet NGVD. The top of this weir structure should also be increased to elevation 20.0 feet NGVD.

      
      

      Station 13+00 to 14+78 (east-west swale): Regrade the swale bottom to remove all high point greater than elevation 8.25 feet NGVD.

      
      

      Station 14+78 (internal road): Replace existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts and lower the invert elevation to 8.25 feet NGVD. If the existing 24 inch X 34 inch CMP Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location.

      
      

      Station 15+23 to 19+29 (east-west swale): Regrade swale bottom starting at elevation 8.25 feet NGVD at station 15+23 and ending with elevation 8.5 feet NGVD at station 19+29.

      
      

      Station 19+29 (weir structure): Increase the existing weir length to the permitted weir length of 5.0 feet at the existing weir crest elevation 10.14 feet NGVD.

2. The Westwood Permit.

   
   

   1. Historical Background.

      
      

      1. As noted above, Westwood is an 82.1 acre residential development. It is located in northern Martin County, west of Stuart, Florida, and east of the Florida Turnpike. It is immediately west of Canoe Creek, an older 86.5 acre subdivision of single family homes. Both projects share a common property boundary, and both historically drain into Bessey Creek. Bessey Creek in turn drains into Canal 23 (C-23) which is a work of the District. Canal C-23 is the dominant drainage feature in the area. Development throughout the Bessey Creek watershed has altered historic sheet flow, and directed that flow to point discharges in the various developments.

         
         

      2. The District issued its Construction and Operation Permit 43-00155-S to Mr. Gordon Nelson on February 14, 1980, for the construction of the residential development which became Westwood. Westwood's surface water management system used grassed swales, catch basins, storm sewers, and natural wetland areas to contain surface waters, which were then directed through one 4-foot weir at elevation 10.75 feet NGVD with a V-notch bleeder set at 9.75 feet NGVD, draining into a 25-foot wide drainage easement and ditch which was part of the Canoe Creek surface water management system. The original permit was reissued to Tall Pines Finance Corporation on July 8, 1982, and included a system of catch basins, one 24 inch by 440 lineal foot CMP equalizing culvert, one 5.33 foot wide weir at elevation 12.2 feet NGVD, one 25 foot wide drainage ditch, and one

         42 inch by 40 lineal foot CMP culvert and one 29 inch by 40 lineal foot CMP culvert.

         
         

      3. The permit was modified on April 14, 1983, to permit Westwood to discharge through a narrower 4-foot wide weir with a crest elevation of 12.1 feet NGVD and two 6-inch diameter circular PVC bleeders, with inverts at elevation 11.5 feet NGVD. Final discharge remained into Canal C-23 via Bessey Creek and the Canoe Creek surface water management system.

         
         

      4. The Westwood permit was modified for a third time on June 9, 1983, to include about 4.15 acres of off-site flows coming into the Westwood surface water management system.

         
         

      5. Westwood's fourth application to modify its surface water management permit was filed on October 14, 1988, in response to a Notice of Violation which the District had served on it on August 26, 1988. The unauthorized discharge of stormwater from the southern boundary of Westwood occurred after a heavy storm and resulted in adverse impacts, i.e., shoaling in Bessey Creek. This unauthorized discharge occurred when the surface water management improvements on the Westwood site were only partially complete. The berm around the property perimeter then was about five feet high, was unsodded and unstable.

         
         

   2. Operation.

      
      

      1. The breach in the berm on Westwood's southern perimeter was partially caused because Westwood was receiving surface waters from a 56 acre parcel which adjoins Westwood on its western boundary, and that sheet flow had not been included in the original calculations for Westwood's own surface water management system or that of Canoe Creek. The other cause was the incorrect elevation of the control structure on the Westwood/Canoe Creek boundary described in the next finding. Water built up on that 56 acre parcel. It first caused a separate breach in the western perimeter berm of Westwood, and the

         additional volume of water entering Westwood overloaded Westwood's system, and in turn caused the breach on the south of Westwood's property, resulting in the unauthorized discharge into Bessey Creek.

         
         

      2. After investigation, Westwood's consulting engineer also found that the outfall structure for the Westwood system had been installed too high, and therefore was not operating correctly. One of the internal pipes had been constructed three tenths of one foot too low, which permitted water to flow in the opposite direction than it had been designed for, which impeded the operation of the system and caused water to back up on the Westwood property. That construction deficiency in the Westwood system has been corrected.

   3. Relation with Canoe Creek Subdivision.

      
      

      1. The available topographic information shows that, in general, the historic natural flow of water over the entire area in issue moves in an easterly and southeasterly direction. This has been recognized to some extent in the surface water management permits issued to both the Canoe Creek and Westwood projects, for their surface water management systems were permitted as integrated systems. The Westwood permit in effect since 1980 authorizes a peak discharge of 21 cubic feet of water per second (CFS) through the weir structure at the subdivisions' common boundary, which is consistent with criteria applicable to the entire C-23 basin. The system is a cascading one, from the 56 acre parcel, through Westwood to Canoe Creek. Water ultimately flows through the Canoe Creek surface water management system down a swale into the Canoe Creek Lake, and from there easterly to a ditch along side West Murphy Road, and then flows south into Bessey Creek.

         
         

      2. A perpetual easement for drainage and utility purposes had been granted by the developer of Canoe Creek Subdivision, Dean Development, to Westwood's predecessor-in-title on December 17, 1979. The easement covers the 20-foot by a 485-foot swale from the Westwood discharge structure at Canoe Creek's western boundary extending easterly into the Canoe Creek Lake.

         
         

   4. Relationship with Crane Creek and Bessey Creek.

      
      

      1. There are other streams in the area which also drain into Canal C-23, such as Crane Creek which is to the south of Westwood. The District has never authorized discharges of water from the Westwood or Canoe Creek areas south into Crane Creek.

         
         

   5. Proposed modification.

   
   

   1. Westwood's application to modify its own permit was largely based on the backwater analysis of Westwood's consulting engineer, which calculates the effect of maximum design loadings or flows on the system. That analysis showed that improvements were required both to the Westwood and Canoe Creek surface water management systems to take into account the increased volume of water which was flowing into the Westwood system from the 56 acres beyond the Westwood property. His suggested modifications include raising by six inches the catch basin at the western boundary of Westwood, which intercepts the flow from the tributary 56 acres, in order to impound more water off-site. The second modification was that the crest of the outfall structure from the Westwood subdivision into Canoe Creek be lowered from 12.1 feet NGVD to 11.8 feet NGVD, that the bleeders be lowered from 11.5 feet NGVD to 11.3 feet NGVD and that four

      (4) bleeders be used. This would alleviate one of the problems that contributed to the breach in the south perimeter berm. The peak discharge from the 56 acres to Westwood during a design storm event would be 3.4 cubic feet per second.

   2. The Canoe Creek system also requires modifications. These include the installation of additional culverts under the subdivision's entrance road and West Murphy road, regrading the swales running from the Canoe Creek Lake to lower their cross-section and improve their water carrying capacity, and widening of the weir to 6.1 feet. This would allow the integrated Westwood and Canoe Creek systems a peak discharge rate of 21.3 CFS each during a 10-year/72- hour design storm event. The peak discharge from the entire drainage area of

      223.7 acres is about 34 CFS, not the combined peak dicharges from both systems of 42.6 CFS. (See, T. 680). This occurs because the Canoe Creek system will not reach its peak discharge at the same time the Westwood system reaches its own peak. The Canoe Creek system reaches its peak well before the 21 CFS peak flow from the Westwood system arrives. The entire system will retain a portion of the design storm rainfall and runoff. This is due to predischarge detention on each site, and the design of the swales and lakes on both properties.

      
      

3. Canoe Creek Permit.

1. History of the Permit.

   
   

   1. The District construction and operation permit for the Canoe Creek Subdivision, 43-00135-S was issued for phase 1 (48.3 acres) on June 7, 1979.

      Its discharge was to occur through two 3.5-foot wide weirs with crest elevations of 10.15 feet NGVD, and V-notches with invert elevations at 9.0 feet NGVD. The ultimate discharge was to be into Canal 23, via Bessey Creek and a drainage ditch. Special Condition 4 of the permit is that operation of the Canoe Creek surface water management system "will be the responsibility of Canoe Creek Homeowner's Association." The Canoe Creek permit was modified on August 6, 1981, to include another 37.3 acres, which was phase 2 of the Canoe Creek Subdivision. The control structure was modified to be one 5-foot wide weir with a crest elevation of 10.25 feet NGVD and one 40 degree V-notch with an invert elevation at 9.0 feet NGVD. The discharge route remained the same.

      
      

   2. The District issued a Notice of Deficiency to Canoe Creek on March 3, 1989, because the District's field staff had found that the control structures, as well as the conveyance system, were not constructed in accordance with the surface water management permit specifications. The swales had been allowed to deteriorate and become obstructed. The weirs were only 3.8 feet wide and had

      52-degree V-notches. They had been permitted as a 5.0 feet wide weir with a 40- degree V-notch. The problem with the width of the control structures was easily corrected, however.

      
      

2. Hydrological relationship with Westwood subdivision.

1. The Canoe Creek developer, Dean Development Company/Arthur Quinn, granted an easement to Westwood to drain its surface water into Canoe Creek. See, Finding 11, above. Canoe Creek argues that the parties intended to limit the easement for drainage from Westwood into Canoe Creek for a nine acre wetland on the western boundary of Canoe Creek. The more reasonable interpretation of the easement is that the parties meant to recognize and allow for the historic water flow in the area. The historic sheetwater flow runs from the 56 acres to the west of Westwood, across Westwood, and finally across the land which is now the Canoe Creek subdivision before it flows into Bessey Creek. The original surface water management permit issued by the District for the Westwood property on February 14, 1980, and all subsequent amendments to it, have authorized Westwood to discharge up to 21 CFS of water into Canoe Creek through a control

   structure located on Westwood's eastern boundary. The most recent amendment to the Westwood permit has the same peak discharge into the Canoe Creek system of

   21 CFS during a 10-year/72 hour design storm event.

   
   

   1. Historic Basin Flows.

      
      

      1. Boundary and Direction of Historic Surface Flows in the Canoe Creek/Westwood Basin.

   
   

2. A determination of the historic surface water flows in the basin is important under the District's criteria for granting or modifying surface water permits, which is known as the District's "Basis of Review." That document is part of Vol. IV, the District's Permit Information Manual and is incorporated by reference in District rules. The District generally intends to permit surface water flows which approximate the runoff from a parcel in its undisturbed or natural state. It is not necessary for an applicant to attempt to determine historic water flows where an allowable discharge rate has been developed by the

   U.S. Army Corps of Engineers for a basin. The rate determined for the C-23 basin is 31.5 cubic feet of water per second per square mile. This maximum allowable discharge rate applies to all projects in the C-23 basin. Basis of Review, Appendix 2, page B-30. This approximates the historic rate of surface water flow over the lands which comprise the C-23 basin during design storm conditions.

   
   

3. In an effort to determine what caused the unauthorized discharge from Westwood's southern boundary into Bessey Creek in August 1988, the consulting engineer retained by Westwood, Mr. Searcy, walked the site. Based on his actual inspection, he found that a tributary area of 56 acres immediately west of Westwood contribute sheet flows to the Westwood subdivision. In general, the land west of Westwood has an elevation of about 13 feet. Elevation declines across Westwood and Canoe Creek, where at the eastern boundard of Canoe Ceek the elevation is about 7 feet. Essentially the elevation tilts from west to east. Mr. Searcy actually prepared a topographical map from survey data as an aid to analysis of the site surface water characteristics. This site specific data is persuasive. It supports Mr. Searcy's determination that sheet flow from the 56 acres to the west of Westwood did not flow south into Crane Creek or into some other tributary of Bessey Creek. Topographical data shows a relatively high area at the south end of the Westwood property which would prohibit flows to the south except for a very small area. The 56 acre parcel to the west is essentially a wetland, and when it overflows the discharge would go through the southern half of what now is the Westwood subdivision, flow through a series of wetlands within Westwood and ultimately to the east into the Canoe Creek subdivision. Review of aerial photography and USGS Quad sheets are consistent with Mr. Searcy's analysis.

   
   

4. The mere existence of the easement across Canoe Creek's land is not a highly persuasive indicator of historic waterflows, because developers generally tend to force sheet water from the center of developments to their perimeters and discharge the flow from point sources. Mr. Mathers' testimony for Canoe Creek was less persuasive than that of Mr. Searcy because Mr. Searcy's testimony was, to a large extent, based on the topographic map of the area which he had prepared. In contrast, Mr. Mathers' testimony was based on his interpretation of aerial photographs. Inferences from those photos are necessarily more general and less reliable then information developed from on-site measurement. Mr. Mathers relied, to some extent, on older topographic or coastal geodetic

   maps, which are not always accurate when they are used to make determinations about small acreages in large map areas. Mr. Mathers also had not been on the site during flood conditions.

   
   

5. As noted in Finding of Fact 18, above, The U.S. Army Corps of Engineers has computed the historic flow volume of water flowing across land in the Canal 23 basin. According to District rules, when evaluating whether a system is capable of handling a volume of run-off, these Corps of Engineers' calculations must be used, rather than attempting to assess and compare predevelopment versus postdevelopment run-off. Permit Information Manual, Vol. IV, Part B, Appendix 2, at page B-30 and Part C (IX) Design Drainage Basins, at page C-IX-1. The modifications in the surface water management systems proposed for Westwood and Canoe Creek would satisfy the C-23 basin criteria.

   
   

   V. Whether modification should be required.

   
   

6. This question has two aspects: what are the deficiencies of the current situation, and what are the benefits of the changes proposed for the current system. These are discussed in subheadings A and B below.

   
   

   1. Current system's inconsistency with objectives of the District.

      
      

7. Without surface water management system modifications, the Canoe Creek system does not provide the required level of flood protection for the area, and therefore can be characterized as constituting a danger to the public health or safety. The objectives of the District are found in Chapter 373, Florida Statutes, and Chapter 40E-4, Florida Administrative Code. The major objective of the District is to prevent damage from flooding. If a project meets the District's permitting criteria it is consistent with the objectives of the District. If a project does not comply with the permitting criteria, it is presumed to be inconsistent with the objectives of the District.

1. Lack of flood protection and drainage, Rule 40E- 4.301(1)(a).

   
   

   24. The backwater analysis of the Canoe Creek surface water system shows that it has insufficient capacity to convey surface water out of the system during design storm conditions. This creates a likehood that surface waters originating in Westwood and the 56 tributary acres to the west will cause flooding during heavy rains, such as rains which approximate the 10-year/72-hour design storm events. Inadequate flooding protection of the system is a potential nuisance.

   
   

2. Ineffective operation and maintenance, Rule 40E- 4.301(1)(f).

   
   

   25. The Canoe Creek surface water management system has not been maintained as it was originally permitted. It is not uncommon in residential subdivisions for roadside swales to become filled in or obstructed by a driveway construction. The conveyance swales downstream of the Canoe Creek lake's control structure have become filled with a height of material so that the swale is now higher than the control structural itself, which prevents the structure from functioning properly. Though a homeowner did testify the subdivision had recently caused the excavation of some of the material in the swale so that the

   control structure would be able to function, there is insufficient evidence that the work done restored the swale to its original permit conditions. Properly graded swales are necessary for the system to function as designed.

   
   

3. Adverse effects on public health and safety, Rule 40E- 4.301(1)(g).

   
   

   26. The current Canoe Creek surface water management system does not meet applicable District criteria for design storm events, which means it constitutes a flood hazard, and therefore a threat to public health and safety.

   
   

4. Inconsistency with state water policy, Rule 40E- 4.301(1)(h).

   
   

   27. The failure to meet District design criteria for flood control and drainage also means that the current Canoe Creek system is not consistent with state water policy or applicable basin criteria.

   
   

5. Inconsistency with applicable basin criteria, Rule 40E- 4.301(1)(j).

   
   

   1. The current Canoe Creek system does not meet applicable basin criteria as shown by the Searcy backwater analysis, but if it is modified as proposed, the system will meet those criteria.

      
      

1. Facts which show that the modifications proposed will be consistent with District objectives.

   
   

   1. If modified as proposed, the backwater analysis performed by Mr. Searcy on the modified system, flood routings, hydrographs, and other evidence provide reasonable assurances that the modified Canoe Creek system will meet the criteria found in the District's Basis of Review for Surface Water Management Permit Applications.

1. Flood protection and drainage, Rule 40E-4.301(1)(a).

   
   

   30. If modified as proposed, the combined Westwood/Canoe Creek surface water management system will provide adequate flood protection and drainage, as shown by the backwater analysis.

   
   

2. Absence of adverse water quality and quantity impacts on receiving waters and adjacent lands, Rule 40E-4.301(1)(b).

   
   

   31. If modified, the Westwood surface water management system and Canoe Creek system will be able to handle their own waters and those from the 56 acre tributary area. Postdevelopment discharge will not exceed predevelopment discharges when measured by applicable C-23 basin criteria of 31.5 CFS per square mile. Water quality treatment is provided by the volume of water detained in the lakes and swales over time and by the incorporation of "best management practices" in the system, including the use of swales and wetlands as part of the treatment system. The increased volumes of water the system will handle, and the marginally increased velocity which comes with the increased water flowing through the system, will not affect water quality. Water quality is assured through the system's detention and storage requirements. Elevations of the control structure are unaltered, so there should be little, if any,

   increases in water velocity. Detention and storage also is accomplished through the control elevations of the structures in the system, which are not being changed in Canoe Creek.

   
   

3. Absence of adverse impacts on surface and ground water levels and flows, Rule 40E-4.301(1)(d).

   
   

   32. No control elevations within the Canoe Creek surface water management system will be changed, although the weir will be widened. There will be no impact on groundwater levels and flows. Even when regraded, Canoe Creek's existing swales will still be above the seasonal high ground water table. There would be no interchange of ground water with water detained in the swales above ground.

   
   

4. Absence adverse environmental impacts, Rule 40E- 4.301(1)(e).

   
   

   33. No modifications are proposed in the wetlands (lakes) on Canoe Creek's property, and no control elevations are being changed. There should be no adverse environmental impacts as measured by District criteria.

   
   

5. Effective operation and maintenance, Rule 40E- 4.301(1)(f).

   
   

   34. While the existing system has not been effectively maintained, nothing about the proposed modifications will impose any additional burden on Canoe Creek in creating and carrying out an effective maintenance program once the required changes are made.

   
   

6. Absence of adverse effects on public health and safety, Rule 40E-4.301(1)(g).

   
   

   35. Better flood protection and drainage will enhance public health and safety. There will be no impact on potable water supplies as there is no persuasive evidence that water tables in a cone of depression are being affected or altered. District criteria for separation will not be violated, for there is no wet detention system currently permitted in the Canoe Creek system, and none would be created. The testimony of Mr. Unsell in this regard was persuasive (Tr. 232, 305-06, 328). None of the excavation from the regrading of the swales on Canoe Creek's property would intrude into a seasonal high water table of groundwater, or cause a mixing of ground water with surface waters being retained or directed in the system. Since there is no wet detention, the requirement of Section 3.2.2.4 of the Basis of Review, that wet detention areas be separated from public water supply wells by 300 feet, will not be violated.

   
   

7. Consistency with state water policy, Rule 40E- 4.301(1)(h).

   
   

   36. This factor is not implicated in the proposed modifications, for nothing about the proposed modifications of the Canoe Creek surface water management permit would be inconsistent with state water policy.

   
   

8. Meets applicable basin criteria, Rule 40E-4.301(1)(j).

   
   

   37. The testimony of District staff, and of the expert for Westwood are persuasive that the drainage criteria for the Canal 23 basin are satisfied by the proposed modifications.

9. Will not harm district water resources or interfere with

   the legal rights of others as defined in Rule 17-40.07, Rule 40E-4.301(1)(k).

   
   

   38. The modifications will result in no harm to water resources of the District. There will be no interference with legal rights of others as defined in Rule 17-40.07, Florida Administrative Code, because that rule of the Department of Environmental Regulation has been repealed. See, Rule 17-40.404, Florida Administrative Code. In addition, the issue of the effect of the modification on Canoe Creek residents has essentially been raised and decided adversely to Canoe Creek in the Westwood permit application litigation, which was recently affirmed by the Fourth District Court of Appeal.

   
   

10. The modification is not against public policy, Rule 40E- 4.301(1)(l).

    
    

    39. The foregoing findings show that the proposed modifications meet the standards found in the District Basis Of Review and Rule 40E-4, Florida Administrative Code. They are therefore consistent with public policy.

    
    

11. Will meet the general and specific criteria in the Basis Of Review, Rule 40E-4.301(1)(m).

    
    

    40. The engineering data and analysis of Mr. Searcy and the testimony the District reviewers are persuasive that the proposed modifications provide reasonable assurances that the general and specific criteria found in the District's Basis Of Review will be satisfied. The modifications are consistent with applicable flood protection, drainage, and water quality criteria.

    
    

12. Isolated wetlands, Rule 40E-40.301(1)(n).

    
    

    41. The hydrologic function of existing wetlands on both the Canoe Creek and Westwood property will be preserved if the proposed modifications are made. They will have no impact on other wetlands.

    
    

13. Criteria for above ground impoundments, Rule 40E- 4.301(1)(o).

    
    

    1. The proposed modifications will meet all design criteria found in the District's Basis Of Review. This is shown by the flood routings and backwater analysis of the existing and proposed systems. This issue also has already been litigated by Canoe Creek in the Westwood permit application case, which was decided adversely to its position there, and the final order in that case was affirmed by the Fourth District Court Appeal.

       
       

       CONCLUSIONS OF LAW

       
       

    2. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes, and Rule 40E-1.521(4), Florida Administrative Code.

       
       

    3. The integrated surface water management system which will result from the proposed modifications comply with District basin criteria. An area of about 56 acres to the west of Westwood contributes surface water flows to the Westwood's surface water flow, and historically has done so. These waters historically then flow east and southeast through the land which now makes up

       the Canoe Creek Subdivision. There is no reason to require the 56 acres or Westwood to retain their historic sheet water flows on site. As a downstream property owner, Canoe Creek has the obligation to continue to receive and to convey those surface water flows. See, e.g. Stoer v. Ocala Mfg., Ice & Packing Co., 24 So.2d 579 (Fla. 1946). The evidence is persuasive that the current Canoe Creek permit was based upon incomplete information about the total area contributing surface water across the Westwood and Canoe Creek lands. It is appropriate to modify the Canoe Creek permits to accommodate those additional historic flows. Under Section 373.429, Florida Statutes, the District may modify a surface water management permit if it determines that an existing permit has become a danger to the public health and safety or is "inconsistent with the objectives of the District." The District implements this statutory authority through Rule 40E-1.609, and it has the means to modify a permit's terms when such modification is necessary to protect the public, prevent a public or private nuisance, or when an existing permit is inconsistent with the objectives of the District. Rule 40E-1.609(2), Florida Administrative Code.

       The contribution of the off-site 56 acre parcel to the combined Westwood/Canoe Creek system was not only proven here, but was established during earlier litigation over the modification of Westwood's own permit. Even without giving any res judicata or collateral estoppel effect to that prior determination, the evidence in this case leads to the same conclusion. The proposed modifications meet the criteria set in Chapter 40E-40.301, Florida Administrative Code, and the District's Basis Of Review, which is incorporated into the District's rules. See, Rule 40E-4.091. The current Canoe Creek surface water management system is not adequate, but the proposed improvements will provide the flood protection necessary and will meet the drainage criteria found in the District's Basis Of Review for the C-23 basin. The flows are historic surfacewater flows, so the modification does not violate the principle articulated in New Homes of Pensacola, Inc. v. Mayne, 169 So.2d 345 (Fla. 1st DCA 1964), that the owner of lower land cannot be required to accept increased surface flows resulting from acts of man on higher land.

       
       

       The C-23 formula.

       
       

    4. In a basin where a basin formula has been established, the method the District uses to determine whether postdevelopment runoff will exceed predevelopment runoff is to apply the basin formula. "The allowable discharge for District canals is based on the formulas, factors and curves shown in Appendix 2 of the Basis of Review document." Basis of Review, page C-IX-1 at

       IX. The formula is uniformly used for all property within the basin. It avoids attempts to estimate pre-development and postdevelopment historic flows. Those flows are extremely difficult to determine for each unique parcel of property because development of other parcels has had an affect on flows observed today. The basin discharge formula does approximate historic flows in the basin as a whole. Application of the formula here is consistent with the past District practice, which is to apply that formula to all applications within the C-23 basin. See, Section 120.68(12)(c). The peak discharge from Westwood during a 10-year/72-hour design storm is 21.3 cubic feet of water per second. The combined flow across both Westwood and Canoe Creek surface water management system is no more than 34 cubic feet of water per second. If the improvements contained in the District's modification proposal are made, the basin formula is satisfied.

    5. The evidence for Canoe Creek includes no engineering analyses to contradict the backwater analyses of Mr. Searcy, which the District staff reviewed. The District's use of the C-23 basin formula in that analyses is not arbitrary or capacious. It would be improper for the District to fail to use that criteria in this proceeding.

       
       

       Legal effect of easement.

       
       

    6. The easement granted by the predecessor in title of the Canoe Creek Property Owner's Association to the developer of Westwood does not show, on its face, a limitation of the water flow. The easement is designed to permit the drainage of the historic flow of surface waters across Westwood through Canoe Creek, because there was no provision to route a portion of Westwood's surface water elsewhere. Therefore, this easement included historic flows first coming onto Westwood from the 56 parcel to its west. Because the modification calculations use the C-23 basin criteria, which is based on historic flows in the basin, the easement Canoe Creeks developer gave to the Westwood developer is not being surcharged by the modications. Cf., Corrigans v. Sebastian River Drainage Dist., 223 So.2d 57 (Fla. 4th DCA 1969).

       
       

       The existing system.

       
       

    7. The evidence is persuasive that the existing system for surface water management does not satisfy District criteria because the existing permit resulted from errors on the part of both the Canoe Creek or their predecessors and of the District, the original Canoe Creek system did not take into account historic water surface flow the 56 acre tributary area. The current system, therefore, does not satisfy District criteria, even though the permit to be modified actually was issued by the District. The evidence in this case does provide, however, reasonable assurance that a modified system will meet the District's criteria, based on the topographical analysis and survey data prepared by Mr. Searcy, the application of the Canal 23 basin formula, and the flood routing utilizing the applicable 10 year/3 day design storm in the backwater analysis to assess the capability of the system to handle surface water during design storm situations. Because the historic surface water flow is to the east and southeast, it was proper for the District to reject the suggestion that the additional flows be directed north, to Mid-Rivers Yacht and Country Club, or south into the Rustic Hills subdivision.

       
       

       Burden of proof.

       
       

    8. The District is attempting to modify Canoe Creek's permit and therefore must bear the burden of persuasion on the issue of whether the modifications are necessary to meet applicable statutes and permitting criteria found in District rules. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The testimony by District witnesses and by Westwood's experts is persuasive that the modifications proposed are necessary. Mr. Searcy performed a specific data gathering, including the preparation of topographic maps, and analytical studies of the entire area. His studies included the impacts on the combined Westwood/Canoe Creek surface water management systems as they relate to every relevant permitting issue under Rule 40E-4.301, Florida Administrative Code. While the evidence from Mr. Mather with respect to historic water flows presented a reasonable basis for contesting the analysis of Mr. Searcy, Mr. Searcy's evidence was the most persuasive.

    9. The District's authority under Rule 40E-1.609(2) to modify the terms of a permit include modifications necessary to "prevent a public or private nuisance." The current system does not meet the District's flood criteria and this can be characterized appropriately as a public nuisance. This related ground also justifies the modification of the Canoe Creek permit.

       
       

       Detrimental Reliance.

       
       

    10. The District's modification rule specifically requires it to address the issue of detrimental reliance when modifying a permit. Under Rule 40E- 1.609(2), Florida Administrative Code, when modifying a permit which is a public or private nuisance, or when continued utilization of the permit is inconsistent with the objectives of the District "due consideration shall be given to the extent to which the permittee has detrimentally relied upon the permit".

        
        

    11. Canoe Creek has argued that it has constructed a drinking water plant, on which homes in the subdivision depend. Canoe Creek believes the operation of the drinking water plant will be endangered by the modifications, because the cone of depression associated with its drinking water supply would be too close to retained surface water. There is no problem here, however, because the water which may remain in the swale leading from the Canoe Creek Lake to the outfall structure during and after rains would not be in contact with the ground water. There will be no direct connection. The 300 foot separation criteria found in Section 3.2.2.4 of the Basis of Review will not be violated, because there is no "wet detention," as that term is defined in Section 2.15 of the Basis of Review, within 300 feet of the public drinking water supply well of Canoe Creek.

        
        

        Collateral Estoppel.

        
        

    12. Canoe Creek participated as a party opponent in the proceeding on the application Westwood filed for modification of its own surface water management system. Westwood contends Canoe Creek should be foreclosed from litigating again issues decided in the prior case, since the same physical improvements and underlying data and analysis form the basis for the District's proposal to modify the Canoe Creek surface water management system as were involved in the Westwood application case. Westwood believes the District's application to modify the Canoe Creek permit should be granted as a matter of law. It is unnecessary to delve into the issue of whether participation in the earlier case binds the Canoe Creek property owners, for after full consideration of the evidence in this record, I independently have come to the same conclusion as Hearing Officer Arrington in the prior case. The modifications proposed by the District should be granted.

        
        

        Improper Motive.

        
        

    13. Canoe Creek also argued that the modifications sought by the District in this case are the product of improper motives of the District and of Westwood. Evidence on this matter was generally rejected, because the question whether the Canoe Creek surface water management system should be modified rises or falls on the facts offered by the District to show that the current Canoe Creek system poses a danger to public health or safety, constitutes a nusiance, or that its operation has become inconsistent with the objectives of the District. There is no reason to explore subjective motivations of District employees. It would certainly be illogical to fail to modify the Canoe Creek surface water management permit if the facts show modification is warranted. At bottom, allegations of "improper purpose" raise the issue of whether the District seeks to mischaracterize the facts in order to achieve a modification

        which the facts do not warrant. The Canoe Creek homeowners may believe that they were sued by the District in order to accomplish an objective for Westwood. Westwood may obtain a collateral benefit from the modification of the Canoe Creek permit. Modification should be required because it is warranted under applicable criteria found in District rules.

        
        

        Attorneys fees.

        
        

    14. Westwood has sought to have attorneys fees imposed as sanctions against Canoe Creek for a series of motions Canoe Creek filed shortly before the final hearing. They included a motion to dismiss, a motion for judgment on the pleadings, motion for continuance, motion to supplement its motion to dismiss, and motion to compel the Division of Administrative Hearings to relinquish jurisdiction. All those motions were denied, but I am not prepared to say that they were "frivolous" as that term is used in Section 120.57(1)(b)5, and interpreted by the District Court of Appeal in Mercedes Lighting and Electrical Supply, Inc. v. State of Florida, Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990). Canoe Creek homeowners had used several of these motions as a way to raise the issue of whether it should be a party to these proceedings at all, rather than the original permittee, the developer of Canoe Creek, Arthur Quinn. Westwood also argued that the witness list filed by Canoe Creek, which identified approximately 50 witnesses, was proof that the Canoe Creek homeowners used this proceeding to harass Westwood, cause unnecessary delay to it or to needlessly increase the cost of litigation. The more reasonable interpretation of the length of Canoe Creek's witness list was that its representative wanted to be sure that anyone they thought might be called would not be excluded for failure to be listed. It has become obvious that there is substantial animosity between the developers of Westwood, who believe the homeowners at Canoe Creek are being intransigent, and the Canoe Creek homeowners, who believe the Westwood developers are unreasonably attempting to surcharge an existing easement and to force them to handle additional water just so the Westwood developer can turn a profit. The facts show that through error, the original developer of Canoe Creek and the water management district staff did not realize the extent of the historic waterflow across the Canoe Creek property, and the permitted Canoe Creek surface water system is underdesigned. Although Westwood seeks to characterize Canoe Creek's final barrage of motions as frivolous, the most that can be said of them is that they were not well taken and therefore were not granted. Westwood's application for fees under Section 120.59(6), Florida Statutes, meets the same fate. Section 120.59(6)(c) is designed to penalize intervenors who participate in a series of proceedings to harass or otherwise delay their opponents. The most common situations under Section 120.59(6)(c) arise from repeated requests for hearings by environmentalists challenging discrete but interrelated permits for large development projects they oppose.

        As a result, the statute instructs the hearing officer to

        
        

        "consider whether the non-prevailing adverse party has participated in two or more other

        . . . proceedings involving the same

        non-agency prevailing party and the same project as an adverse party, and in which such two or more proceedings the

        non-prevailing adverse party did not establish either the factual or legal merits of its position, and [the hearing officer] shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous

        proceedings. In such event, it shall be rebuttably presumed that the non-prevailing adverse party participated in the pending proceeding for an improper purpose." Section 120.59(6)(c).

        
        

        The special circumstance which rebuts any inference of an improper purpose on the part of Canoe Creek for participating in this case is that this action was brought directly against Canoe Creek by the water management district. In the prior application to modify the Westwood permit, no party sought, nor could any party have obtained, relief against Canoe Creek. There is no reason why Canoe Creek should be disabled from defending itself here. Canoe Creek's evidence, especially that of Mr. Mathers concerning historic waterflows over the property, was cogent and well reasoned. Although Canoe Creek did not prevail, it was entitled to the opportunity to show that the District's proposed modification proceeded upon incorrect factual assumptions about historic waterflows. Similarly, although Mr. Mathers criticisms of the backwater analysis done by Mr. Searcy have not been persuasive, the questions raised were appropriate. Canoe Creek's opposition to the permit modification was neither frivolous nor undertaken for an improper purpose as those terms are defined in Section 120.59(6)(c) or (e), Florida Statutes.

        
        

        Collateral Issues.

        
        

    15. The hearing was limited to whether the permit modifications sought by the District should be granted, and Canoe Creek was not permitted to raise collateral issues. The question whether the modifications would result in action by the Department of Environmental Regulation to close its public drinking water well was litigated indirectly. The issue was presented in determining the issue of detrimental reliance under Rule 40E-1.609(2), Florida Administrative Code, and in determining the question whether the proposed modification violated the standards in the District's Basis of Review, Section 3.2.2.4, by locating wet detention within 300 feet of a public drinking water supply. The relevant findings have been made. There is no wet detention within

        300 feet of the public drinking water supply. The presence of the drinking water wells do not preclude the modification of the Canoe Creek surface water management permit.

        
        

        Standing.

        
        

    16. The challenge made by Westwood to the standing of Canoe Creek Property Owner's Association is unfounded. The homeowners had standing in this proceeding because it was filed against the property owners' association by the District. The association is responsible for operation of the system under Special Condition 2 of the Canoe Creek permit. This alone gives the homeowners standing. Moreover, the homeowners proved that they all rely on the drinking water plant which serves the homes in the Canoe Creek subdivision. The potential effect of the permit modification was such that they clearly enjoyed standing to oppose the District's attempt to modify their surface water management permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the modifications to the Canoe Creek Surface Water

Management permit number 43-00135-S made in the District's administrative complaint and order/notice of intended modification be granted.

DONE and ENTERED this 31st day of July, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

Rulings on the findings proposed by South Florida Water Management District:

1. - 4. Discussed in the Preliminary Statement.

1. Adopted in Finding 3.

2. Adopted in Finding 4.

3. Adopted in Finding 5.

4. Adopted in Finding 6.

5. Adopted in Finding 7.

6. Adopted in Findings 7 and 8.

7. Adopted in Finding 10.

8. and 13. Adopted in Finding 10.

1. Adopted in Finding 12.

2. Adopted in Finding 13.

3. Adopted in Finding 14.

4. and 18. Adopted in Finding 15.

19. and 20. Adopted in Finding 16.

1. Adopted in Finding 17.

2. Adopted in Finding 11.

3. Adopted in Finding 15.

4. Rejected as argument.

5. Adopted in Finding 19.

6. Adopted in Finding 21.

   The remaining paragraphs are treated as if they had been numbered.

7. Adopted in Finding 24.

8. Adopted in Finding 23.

9. Adopted in Finding 24.

10. Adopted in Finding 26.

11. Adopted in Finding 27.

12. and 33. Adopted in Finding 28.

1. Adopted in Finding 29.

2. Adopted in Finding 30.

3. - 38. Adopted in Finding 31.

Rulings on the findings proposed by Westwood:

1. - 7. Discussed in Preliminary Statement.

1. Adopted in Findings 3 and 4.

2. Adopted in Findings 10 and 17.

3. Adopted in Findings 7 and 8.

4. Adopted in Finding 9.

5. Adopted in Findings 4 and 9.

6. Adopted in Findings 10 and 11.

7. Adopted in Findings 3 and 4.

8. Adopted in Findings 8 and 10.

9. Adopted in Finding 12.

10. Adopted in Finding 13.

11. Adopted in Finding 14.

12. Adopted in Findings 10 and 15.

13. Adopted in Finding 16.

14. Adopted in Findings 10 and 17.

15. Adopted in Findings 10, 17 and 19.

16. Rejected as unnecessary.

17. Adopted in Findings 10, 17 and 19.

18. Adopted in Finding 15.

19. Adopted in Finding 2, except for the final two sentences which are rejected as unnecessary.

20. Adopted in Findings 12 and 19.

21. Adopted in Findings 18 and 19.

22. Adopted in Finding 20.

23. Adopted in Findings 18 and 21.

24. and 32. Adopted in Finding 23.

1. Adopted in Finding 22.

2. Rejected as unnecessary.

3. Adopted in Finding 24.

4. Adopted in Finding 25.

5. Adopted in Finding 26.

6. Adopted in Finding 27.

7. Adopted in Finding 28.

8. Adopted in Findings 27 and 28.

9. Adopted in Finding 29.

10. Adopted in Finding 30.

11. - 45. Adopted in Finding 31.

1. Adopted in Finding 32.

2. Adopted in Finding 33.

3. Adopted in Finding 34.

4. Adopted in Finding 35.

5. Adopted in Finding 36.

6. Adopted in Finding 37.

7. Discussed in Finding 38.

8. Adopted in Finding 39.

9. Adopted in Finding 40.

10. Adopted in Finding 41.

11. - 58. Rejected as redundant.

Rulings on the findings proposed by Canoe Creek:

1. Adopted in the Preliminary Statement.

2. Adopted in Findings 3 through 7.

3. Adopted in Finding 15.

4. and 5. Rejected as irrelevant. The acreage drained according to the permit is consistent with the application made to the District, but not with the historic sheet flow.

1. Rejected. The project was not constructed properly, see, Finding 25.

2. Sentence one adopted in Finding 11. Sentence 2 and proposed finding 8 are rejected for the reasons stated in Finding 17.

1. Adopted in Finding 14.

2. Rejected as unnecessary and unpersuasive.

3. Rejected as unnecessary.

4. Rejected for the reasons found in Finding 18. Where there is a basin discharge rate, historic discharge is not determined for an individual parcel.

5. Rejected. See, Findings 19 and 20. There is no Crane Creek permit in evidence, which Respondents refer to in their proposed findings as RX 181.

6. Rejected. See, Findings 17 through 20.

7. and 16. Rejected. See, Finding 20.

1. Rejected as unnecessary.

2. Generally accepted in Finding 21.

3. Rejected because routings of the flow north or south would be inconsistent with the historic sheet water flow.

4. and 21. Rejected. See, Findings 19 and 20.

1. Rejected. See, Finding 17.

2. Rejected. See, Findings 10, 17 and 19.

3. Rejected; it is fortunate that there has not been flooding before this time. During the last heavy rain in August of 1988 there may have been no flooding because water from the western 56 acres and Westwood broke through the south of the Westwood berm and could flow south into Bessey Creek in an unauthorized manner.

4. and 26. Adopted in Finding 23.

27. and 28. Rejected because this is not an original permit application, but an action by the District to require modification of an existing permit. It is not necessary for the District to file a permit application with itself. This modification procedure is appropriate, and focuses narrowly on the problems with the current system.

1. Rejected as unnecessary.

2. Rejected for the reasons given for rejecting Findings 27 and 28.

3. Rejected. The Searcy report was generally checked by the District staff, although they did not conduct an independent analysis of their own.

4. and 33. Rejected. See, Finding 35.

1. Rejected. See, Findings 18 and 21.

2. Rejected, Searcy determined that the two systems would peak at different times. See, Finding 14.

3. Rejected, there will be no turbidity problems because there is no increase in velocity of the water. See, Finding 31. Also, there is no additional peak flow of water, see, Finding 14. The peak flow from Westwood remains 21 CFS.

4. Rejected. See, Finding 34.

5. Rejected. See, Finding 35.

6. Rejected. See, Finding 39.

7. Rejected. See, Finding 35.

8. Rejected. See, Finding 34.

9. Rejected as a conclusion of law, but the standards found in Rule 40E-

   4.301 are applicable.

10. Rejected as unnecessary.

11. and 45. Rejected as argument, not a finding of fact.

1. Rejected because the developer of Canoe Creek, the developer of Westwood, and the District were mistaken in designing their surface water management systems by not including drainage from the 56 acres to the west of Westwood.

2. The system is inconsistent with the District objectives. It is fortunate that the system has not flooded yet, but if not changed, it will. The discharge of water which took place in August of 1988 from the south perimeter of Westwood will no longer take place. Even if the August of 1988 storm was not the equivalent of a design storm, when a design storm occurs, the current system will be proven to be inadequate by sad experience.

3. Rejected because the testimony of Mr. Searcy was more persuasive.

4. Rejected because the testimony of Mr. Feinstein was unpersuasive. See also, Finding 14.

5. Rejected. See, Finding 35.

6. Rejected. See, Findings 31-33.

7. Rejected as unnecessary, the knowledge of Mr. Unsell is not determinative.

8. Rejected as redundant.

9. Rejected. See, Findings 23 and 24. In a design storm, the proposed modifications will protect Canoe Creek from flooding. The current system will not accommodate historic water flows.

10. Rejected because the routing in the modification reflects the historical water flow.

11. Rejected. See, Finding 12.

12. Rejected as unnecessary.

13. Rejected because the historic water flow is not north to Mid-Rivers or south to Rustic Hills.

14. Rejected as inconsistent with the historic flow.

15. and 61. Rejected, the testimony of Mr. Searcy was more persuasive, See, e.g., Tr. at 661.

1. Rejected. I am not persuaded that improvements to the northern route of Canoe Creek are needed.

2. and 64. Rejected as redundant.

1. Rejected as unnecessary.

2. Rejected because Rule 40E-4.301(1)(k) does not apply, See, Finding 38.

COPIES FURNISHED:

John J. Fumero, Esquire 3301 Gun Club Road

Post Office Box 24680

West Palm Beach, Florida 33416

Manuel Farach, Esquire Post Office Box 778 Stuart, Florida 3499-50778

Don Mooers

Qualified Representative Post Office Box 1147 Palm City, Florida 34990

Terry E. Lewis, Esquire

Robert P. Diffenderfer, Esquire Messer, Vickers, Caparello,

French, Madsen & Lewis, P.A. 2000 Palm Beach Lakes Boulevard Suite 900

West Palm Beach, Florida 33409

John Wodraska, Executive Director

South Florida Water Management District Post Office Box 24680

West Palm Beach, Florida 33416

Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

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.

Docket for Case No: 90-001734

Orders for Case No: 90-001734