STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. and JERRILYN MOORE, )

)

Petitioners, )

)

vs. ) CASE NO. 93-6656

)

PAUL BRIDGES and SUWANNEE ) RIVER WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 14, 1994, in Trenton, Florida.

APPEARANCES

For Petitioners: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E

Trenton, Florida 32693

For Respondent: Paul Bridges, pro se Paul Bridges Route 2, Box 120K-1

Trenton, Florida 32693

For Respondent: Janice F. Bessinger, Esquire

Suwannee River Brannon, Brown, Haley, Robinson & Cole Water Management Post Office Box 1029

District Lake City, Florida 32056-1029 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent, Suwannee River Water Management District, should issue a General Surfacewater Management Permit to Respondent, Paul Bridges, to replace a 62 inch road culvert with a 24 inch culvert.

PRELIMINARY STATEMENT

The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer and assigned to Hearing Officer Donald R. Alexander on November 17, 1993. The formal hearing was set for February 14, 1994, pursuant to a Notice of Hearing issued on December 8, 1993. The matter was transferred to the undersigned on February 8, 1994.

At the formal hearing, Petitioners presented the testimony of Respondent, Bridges, and Messrs. Glenn Miller, Terry Demott and Craig Hinnis. Petitioners submitted nine exhibits for admission in evidence. Exhibit 1 is a copy of a

letter from Respondent, Suwannee River Water Management District (the "District") to Respondent, Bridges, dated May 28, 1991. Exhibit 2 is a copy of a picture of a road. Exhibit 3 is a copy of the Application For Agriculture Or Forestry General Surfacewater Management Permit. Exhibit 4 is a copy of a soil conservation map of the area. Exhibit 5 is a copy of a letter from the District to Petitioner, James Moore, dated October 20, 1993. Exhibit 6 is a copy of a letter from the District to Mrs. Linda Bridges dated November 19, 1993. Exhibit

7 is a composite exhibit consisting of copies of three pictures of the Bridges farm pond. Exhibit 8 is a copy of a letter from the District to Mr. David Schilling, ITT Rayonier, dated August 18, 1982. Exhibit 9 is a copy of an inspection report by the District.

Petitioners' Exhibits 1, 3, 5, 6, 8, and 9 were admitted in evidence without objection. Petitioners' Exhibits 2 and 7 were admitted in evidence over objection. Petitioners' Exhibit 4 was rejected pursuant to objection.

The parties stipulated to the admission of two joint exhibits. J-1 is an aerial map of the area. J-2 is a composite exhibit of two topographic maps of the area.

Respondent, Bridges, testified in his own behalf and presented the testimony of Mr. Dennis Tew. The District presented the testimony of Mr. Terry Demott, Compliance Coordinator for the District. The District submitted no exhibits for admission in evidence other than J-1 and J-2.

A transcript of the formal hearing was not requested by either party.

Petitioners and the District timely filed proposed findings of fact and conclusions of law on February 23 and 24, 1994, respectively. Respondent, Bridges, did not submit proposed findings of fact. Proposed findings of fact filed in this proceeding are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property.

   
   

2. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property").

   
   

3. A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east.

   
   

4. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property.

5. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the

   24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake.

   
   

6. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property.

   
   

7. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances.

   
   

8. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property.

   
   

9. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property.

   
   

10. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property.

    
    

11. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily.

    
    

12. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District.

13. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

15. The burden of proof is on the applicant in this proceeding. The applicant must show by a preponderance of the evidence that the proposed permit should be issued. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

16. The applicant satisfied his burden of proof. The applicant proved by a preponderance of the evidence that he satisfied applicable requirements for the permit and that the District followed applicable requirements in reaching its decision to issue the permit. Florida Administrative Code Rules 40B- 4.2010(1)(a) and 40B-4.2020(1).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District,

enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For

Agriculture Or Forestry General Surfacewater Management Permit.

DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida.

DANIEL S. MANRY

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 2nd day of March 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656

Petitioners' Proposed Findings Of Fact.

1.-4. Rejected as immaterial

5. Rejected as recited testimony

6.-7. Rejected as not supported by credible and persuasive evidence

8. Rejected as irrelevant and immaterial

9.-13. Rejected as not supported by credible and persuasive evidence

14.-15. Rejected as irrelevant and immaterial

16.-19. Rejected as not supported by credible and persuasive evidence

1. Rejected as irrelevant and immaterial

2. Rejected as not supported by credible and persuasive evidence

3. Rejected as recited testimony

23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact.

Respondent, Bridges, did not submit proposed findings of fact.

Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance.

COPIES FURNISHED:

James H. and Jerrilyn Moore, pro se Route 2, Box 120-E

Trenton, FL 32693

Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693

Janice F. Bessinger, Esquire

Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029

Lake City, FL 32056-1029

Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64

Live Oak, FL 32060

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: 93-006656

Orders for Case No: 93-006656