STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY LINE COALITION, INC., )

)

Petitioner, )

)

and )

)

DAVID AND SHERYL BOWMAN, )

)

Intervenors, )

)

vs. ) Case No. 98-2927

) SOUTHWEST FLORIDA WATER MANAGEMENT ) DISTRICT and PASCO COUNTY BOARD ) OF COUNTY COMMISSIONERS, )

)

Respondents. )

)

RECOMMENDED ORDER

On January 27-28, 1999, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles J. Traina, Esquire

Post Office Box 625

Brandon, Florida 33509-0625 For Southwest Florida Water Management District:

Margaret Lytle

Assistant General Counsel Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

Mark F. Lapp

Assistant General Counsel Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

For Pasco County: Barbara Wilhite, Esquire

Pasco County

West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654

For Intervenors: David and Sheryl Bowman, pro se

Post Office Box 1515 Lutz, Florida 33548-1515

STATEMENT OF THE ISSUE

The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.

PRELIMINARY STATEMENT

Pasco County submitted ERP Application No. 4316067.00 on December 10, 1996. On May 29, 1998, SWFWMD determined that the permit application gave reasonable assurances that the conditions for issuance had been met and gave notice of intent to issue the permit.

The Petitioner, County Line Coalition, Inc., filed its petition on June 17, 1998. SWFWMD referred the matter to the Division of Administrative Hearings (DOAH) on July 2, 1998, and final hearing initially was scheduled for November 16-17, 1998.

David and Sheryl Bowman filed a petition to intervene on August 20, 1998, and leave to intervene was granted.

SWFWMD and Pasco County filed a joint motion to dismiss the

Petition; the motion was granted with leave to amend. SWFWMD and Pasco County also filed a joint motion to dismiss the Amended

Petition; the motion was granted with leave to file a second amended petition.

On October 26, 1998, the Petitioner filed a Motion for Extension of Time to File [Second] Amended Petition. At a telephone motion hearing on October 27, 1998, SWFWMD moved ore tenus to dismiss for failure to file a second amended petition. The motion was denied, and the Petitioner's Motion for Extension of Time to File [Second] Amended Petition was granted. In addition, final hearing was continued until December 16-17, 1998, and a Prehearing Order was entered requiring the parties to file a prehearing stipulation.

The Second Amended Petition was filed on November 6, 1998. SWFWMD and Pasco County also filed a joint motion to dismiss the Second Amended Petition, but the motion was denied.

The parties filed a Prehearing Stipulation on December 14, 1998. However, final hearing was cancelled on account of the Official State Day of Mourning the death of Governor Lawton Chiles, and final hearing was continued until January 27-28, 1999. A Supplemental Prehearing Stipulation was filed on January 25, 1999.

At final hearing, Pasco County and SWFWMD each called three expert witnesses; the Petitioner called two non-expert witnesses; and the Intervenors called one expert witness. Pasco County recalled one of its experts in rebuttal.

Pasco County and SWFWMD had Respondents' Exhibits 1 through

9, 11, and 13 through 17 admitted in evidence. The Intervenors

had Intervenor Exhibits 1 through 7, 9, and 11 admitted in evidence. Objections to Petitioner's Exhibit 7 and Intervenor Exhibit 8 were sustained, and those exhibits were not admitted in evidence.

SWFWMD ordered a transcript of the final hearing, and the parties were given ten days from the filing of the transcript to file proposed recommended orders and final argument. The transcript was filed (in two volumes) on February 16, 1999. All parties filed final argument, and the Respondents filed a proposed recommended order. All post-hearing filings have been considered.

FINDINGS OF FACT

1. County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major

   east-west roadway to alleviate traffic congestion on State Road

   54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County

   Line Road to Collier Parkway and widening it to a four-lane road by 2010.

2. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek.

3. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County.

4. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed.

5. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on

   the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010.

6. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings.

7. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume

   Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book").

   These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book."

8. The Intervenors also contend that the planned widening

   of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements.

9. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway.

10. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes.

    A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands.

11. It also would cost significantly less to build the

    four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage.

12. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing.

13. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would

    remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra.

14. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of

    the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase.

15. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek.

16. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.)

17. While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area.

18. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project.

19. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction

    of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra.

20. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities.

21. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.)

    
    

22. As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road.

23. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from

    the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision.

24. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997).

    
    

25. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors:

    1. Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others;

    2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

    4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

    5. Whether the activity will be of a temporary or permanent nature;

    6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects.

26. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions:

    1. will not cause adverse water quantity impacts to receiving waters and adjacent lands;

    2. will not cause adverse flooding to on- site or off-site property;

    3. will not cause adverse impacts to existing surface water storage and conveyance capabilities;

    4. will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District;

    5. will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated;

    6. will not cause adverse secondary impacts to the water resources;

    7. will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997);

    8. will not cause adverse impacts to a work of the District established pursuant to Section 373.086;

    9. is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and

    10. will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued.

27. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).

    CONCLUSIONS OF LAW

    
    

28. SWFWMD is a water management district with the power

    and duty to exercise regulatory jurisdiction over the administration and enforcement of surface water management system (SWMS) rules and regulations pursuant to the provisions of Part

    IV, Chapter 373, Florida Statutes (1997), and Chapter 40D-4, Florida Administrative Code.

29. Section 373.413(1), Florida Statutes (1997), gives the District the authority to require such permits and impose such reasonable conditions as are necessary to assure the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of Chapter 373, Part IV, Florida Statutes (1997), and applicable rules promulgated pursuant thereto, and will not be harmful to the water resources of the District.

30. The issuance of a SWMS permit must be based solely on compliance with applicable permit criteria. Council of the Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983). Section 373.414, Florida Statutes (1997), and Rules 40D-4.301 and 4.302, Florida Administrative Code, set forth the applicable conditions for issuance of SWMS permits.

31. Section 373.414(1), Florida Statutes (1997), provides in pertinent part:

    1. As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest.

       . . . .

       1. In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest . . . , the governing board or the department shall consider and balance the following criteria:

          1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others;

          2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

          3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

          5. Whether the activity will be of a temporary or permanent nature;

          6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, the governing board or the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It shall be the responsibility of the applicant to choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated activity.

32. Florida Administrative Code Rule 40D-4.301 provides in

    pertinent part:

    
    

    1. In order to obtain a standard general, individual, or conceptual permit under this chapter or Chapter 40D-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:

       1. will not cause adverse water quantity impacts to receiving waters and adjacent lands;

       2. will not cause adverse flooding to on- site or off-site property;

       3. will not cause adverse impacts to existing surface water storage and conveyance capabilities;

       4. will not adversely impact the value of functions provided to fish and

          wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District;

       5. will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, F.A.C., . . . will be violated;

       6. will not cause adverse secondary impacts to the water resources;

       7. will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, F.S.;

       8. will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.;

       9. is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed;

       10. will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and

       11. will comply with any applicable special

           basin or geographic area criteria established pursuant to this chapter.

    2. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant shall comply with the requirements set forth in Section 3.2.4.5 of the Basis of Review.

    3. The standards and criteria contained in the Basis of Review for Environmental Resource Permit Applications shall determine whether the reasonable assurances required by subsection 40D-4.301(1) and Section 40D- 4.302, F.A.C., have been provided.

33. Florida Administrative Code Rule 40D-4.302(1) adds to the conditions set forth in Section 40D-4.301. Paragraph (a) essentially repeats the Section 373.414(1)(a) public interest test. Paragraph (b) of Rule 40D-4.302(1) requires an applicant to also provide reasonable assurances that a proposed project:

    Will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), F.S.

    
    

34. SWFWMD's Basis of Review provides in pertinent part:

    
    

    1. -- Except as provided in 3.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of sections 3.2.2 through 3.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.

       
       

       The term "modification" shall not be construed as including the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is

       not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable." A proposed modification need not remove all economic value to the property in order to be considered not "practicable." Conversely, a modification need not provide the highest and best use of the property to be "practicable." In determining whether a proposed modification is practicable, consideration shall be given to the cost of the modification compared to the environmental benefit it achieves.

    2. -- The District will not require the

       applicant to implement practicable design modifications to reduce or eliminate impacts when:

       1. the ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in subsection 3.2.2.3, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or

       2. the applicant proposed mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.

    Basis of Review 3.2.3 essentially repeats the Section 373.414(1)(a) and Rule 40D-4.302(1)(a) public interest tests.

35. Under Department of Transportation v. J.W.C. Co., Inc.,

    
    

    396 So. 2d 778, 789 (Fla. 1st DCA 1981), if the regulatory agency gives notice of intent to grant the permit application, the applicant has the initial burden at a formal administrative hearing of going forward with the presentation of at least a prima facie case of its entitlement to a permit. Once a prima

    facie case is made, the burden of going forward can be shifted to the opposing parties to present competent substantial evidence, consistent with the allegations of their petitions, that the applicant is not entitled to the permit. Unless the opponents present "contrary evidence of equivalent quality" to that presented by the applicant and SWFWMD, the permit must be approved.

36. In this case, although SWFWMD gave notice of intent to grant Pasco County's permit application, the burden of going forward with evidence was not shifted between the Pasco County and the opposing parties. However, it is clear that the Petitioner and Intervenors did not present "contrary evidence of equivalent quality" to that presented by Pasco County in its case-in-chief. It also is clear, as reflected in the findings,

that Pasco County met its burden of proving by a preponderance of the evidence that its proposed SWMS, with SWFWMD's general and specific conditions, will comply with all applicable permitting criteria.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No.

4316067.00.

DONE AND ENTERED this 18th day of March, 1999, in

Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1999.

COPIES FURNISHED:

Charles J. Traina, Esquire Post Office Box 625

Brandon, Florida 33509-0625

Margaret Lytle, Assistant General Counsel Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

Barbara Wilhite, Esquire Pasco County

West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654

David and Sheryl Bowman, pro se Post Office Box 1515

Lutz, Florida 33548-1515

E. D. Vergara, Executive Director

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002927

Orders for Case No: 98-002927