STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FRANK C. KUNNEN, JR., )

)

Petitioner, )

)

vs. )

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT AND ) DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

Case No. 01-2571

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on September 26 and 27, 2001, in Tampa, Florida, on behalf of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: James A. Helinger, Esquire

Law Offices of James A. Helinger 814 Chestnut Street

Clearwater, Florida 33756

For Respondent Robert C. Downie, II, Esquire Florida Florida Department of Transportation Department of 605 Suwanee Street, Mail Station 58 Transportation: Tallahassee, Florida 32399-0458

For Respondent Christine C. Stretsky, Esquire Southwest Mark F. Lapp, Esquire

Florida Water Southwest Florida Water Management Management District

District: 2379 Broad Street

Brooksville, Florida 34604-6899

STATEMENT OF THE ISSUE

The issue is whether Respondent, Southwest Florida Water Management District (the "District"), should approve the application of Respondent, Florida Department of Transportation ("DOT"), for modification of a standard general environmental resource permit: modification permit no.

44011760.010 (the "modification permit").

PRELIMINARY STATEMENT

On January 19, 2001, DOT filed an application with the District seeking approval of the modification permit. On June 1, 2001, the District issued a Notice of Final Agency Action approving DOT’s application for the modification permit. On June 15, 2001, Petitioner filed a Petition for Formal Administrative Hearing contesting the modification permit.

Prior to the hearing, the parties filed a Pre-Hearing Stipulation with DOAH. The parties stipulated to the accuracy and veracity of Respondents’ Exhibits 1, 2, and 6 and to the accuracy of the first seasonal high groundwater elevations found in Respondents’ Composite Exhibit 3.

At the administrative hearing, the parties entered ore tenus stipulations on the record. The parties stipulated that DOT has satisfied the requirement for reasonable assurances of the criteria found in Florida Administrative Code Rule 40D-

4.301(1)(d), (f), (h), (j), and (k). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.) The parties also stipulated that the permitted project does not negatively affect any of the criteria in the public interest test in Rule 40D-4.302(1)(a)2-7. Finally, the parties stipulated that DOT has met the conditions set forth in Rule 40D-4.302(1)(b), (c), and (d). These and additional stipulations are discussed in the Findings of Fact.

At the hearing, Petitioner presented the testimony of three witnesses. DOT called one witness, and the District called two witnesses. Petitioner submitted 15 exhibits for admission in evidence, and Respondents submitted 11 exhibits. The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing filed on October 23, 2001.

The parties requested additional time to file their proposed recommended orders ("PROs") and agreed that 20 days from the date of the filing of the Transcript would be sufficient. Petitioner timely filed his PRO on November 9, 2001. Respondents filed their Joint PRO on November 13, 2001.

FINDINGS OF FACT

1. Petitioner owns a developed parcel of mixed-use property in Pinellas County, Florida, known as the U.S. 19

   Commerce Center (the "Commerce Center"). The Commerce Center is proximate to U.S. 19 and is located within the Alligator Creek Watershed.

2. DOT is the state agency charged by statute with responsibility for the construction, maintenance, and operation of the State Highway System, including U.S. 19. DOT proposes a highway reconstruction project of a portion of U.S.

   19 that is proximate to the Commerce Center and located within the Alligator Creek Watershed. DOT seeks the modification permit from the District in order to complete the highway reconstruction project.

3. The District is a political subdivision that operates under the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes (2001). (All statutory chapter and section references are to Florida Statutes (2001) unless otherwise stated.)

4. The District is responsible for regulating, among other things, environmental resource permitting in Pinellas County, including the permitting for any regulated activity within the Alligator Creek Watershed. The area of concern for the District in this case involves a sub-basin within the Watershed that is crossed by several channels and drainage ditches including those identified by the parties as Channel A, Channel G, and the "east-west ditch." The channels and

   ditches in the sub-basin eventually flow into the ultimate outfall for the entire basin.

5. On June 21, 1999, the District issued Environmental Resource Permit ("ERP") No. 4411760.008. The parties refer to that permit as the ".008" permit or the "original permit." Petitioner did not challenge the original permit.

6. The original permit authorized DOT to construct a surface water management system for anticipated runoff caused by the reconstruction of U.S. 19 in the vicinity of Drew Street and the Commerce Center (the "original project"). DOT designed the original project to collect post development stormwater runoff, treat the runoff, and discharge it. The original project included several surface water detention ponds east of U.S. 19 in the vicinity of the Commerce Center. The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1, and 4E2.

7. DOT intended to locate Pond 4B on Commerce Center property. However, DOT and Petitioner were unable to agree on terms, and DOT filed a condemnation action in circuit court pursuant to DOT's power of eminent domain.

8. DOT withdrew the condemnation action against Petitioner sometime before January 19, 2001. On January 19, 2001, DOT applied to the District for approval of a modification to the original permit. On June 1, 2001, the

   District issued permit modification No. 44011760.010. The parties refer to this second permit alternatively as either the ".010" permit or the "modification permit." This second permit is the modification permit that is at issue in this proceeding.

9. The modification permit eliminates Pond 4B and authorizes the addition of Pond 4C to be located on property that is not owned by Petitioner. The modification permit also combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds 4E1 and 4E2 into Pond 4E. In addition, the modification permit moves the point of discharge in the east-west ditch to the west closer to U.S. 19 and farther from the Commerce Center; places 7.72 acre-feet of fill in the 100-year flood plain; compensates for the fill by equivalent excavation and storage modeling; and places impervious liners in two ponds (the "modified project").

10. The modified project slows the rate of discharge in the system and increases water quality treatment. The modified ponds will have more storage volume, and the discharge rates from the ponds will be lower. The modified ponds will peak at hour 12 of a 25-year, 24-hour storm event. The modified project will discharge into Channel A and the east-west ditch.

11. Petitioner challenges the modification permit, in relevant part, on the ground that DOT does not own the property required for the modified project and cannot acquire control of the property through the power of eminent domain. During the hearing, Petitioner represented that DOT had previously begun two condemnation actions to acquire property necessary for the original project but had entered voluntary dismissals of both actions. Petitioner argued that Florida Rule of Civil Procedure 1.420 bars DOT from instituting any future eminent domain actions to obtain control of property needed for the modified project.

12. The evidence does not reveal the underlying facts associated with the condemnation actions referred to by Petitioner. If Petitioner were to demonstrate the legal necessity for DOT to acquire control of a portion of Commerce Center property in order to complete the modified project, there would be no evidentiary basis for a finding that the portion of Commerce Center property required for the modified project would be identical to that DOT previously sought to condemn twice in connection with the original project.

13. Petitioner did not demonstrate the legal necessity for DOT to acquire control of Commerce Center property in order to complete the modified project. Applicable rules do not require ownership of property by entities with the power

    of eminent domain, including DOT. Rule 40D-4.101(3). Ownership is not a condition of issuance but is merely information that must be included in the permit application. Rule 40D-4.101(2).

14. The original ALJ in this case issued a prehearing order that prohibits Petitioner from challenging DOT's ownership of the property needed to complete the modified project. The law of the case established in the prehearing order, prohibits Petitioner from challenging: the legal right of DOT to discharge into the east-west ditch; the legal ownership or control of the area of the project where Pond 4E is to be located; and the legal right to utilize Petitioner’s stormwater "retention" area.

15. The preponderance of evidence shows that DOT currently owns all of the property necessary to construct the modified project. Furthermore, the modification permit specifically provides that DOT cannot begin construction until DOT owns or controls all property necessary for the modified project.

16. The District correctly reviewed the application for the modification permit. The District correctly applied the design and performance criteria set forth in the Basis of Review for Environmental Resource Permit Applications (the

    "BOR"). The BOR is adopted by reference in the District’s rules. Rule 40D-4.091(1).

17. The parties entered into several stipulations in addition to those previously discussed. In relevant part, the parties stipulated that no special basin criteria apply to the modified project.

18. The parties also stipulated to the accuracy and veracity of the Alligator Creek Watershed Study (the "Alligator Creek Study"). The Alligator Creek Study is the only known source of both elevations and timings during rainfall events for the area surrounding the modified project. Among other things, the Study predicts stormwater levels in various locations during severe rainfall events. The predictions are based upon existing drainage capacity within the Alligator Creek basin and also upon certain assumptions regarding conditions that exist at the time that a rainfall event begins.

19. The Alligator Creek Study, for example, predicts a high water level in Channel A of 23.28 feet at hour 16 during a 25-year, 24-hour storm event. The prediction is based upon the capacity of the receiving water-body, the current rate at which surface areas currently discharge into that water-body, and the assumption that the rainfall event is uniform across

    the entire Alligator Creek basin. The Study also assumes mean high tide at the ultimate outfall of the basin.

20. The stipulations between the parties leave several issues to be determined. One issue is whether the east-west ditch is an historical discharge location in the area surrounding the modified project.

21. The original permit and the modified permit authorize runoff to discharge into two locations. One location is the east-west ditch, and the other is Channel A.

22. Petitioner claims that the east-west ditch is not an historical discharge location but is a detention facility constructed by Petitioner and is Commerce Center property that DOT cannot utilize in the modified project. In a prehearing order, the original ALJ in this case prohibited Petitioner from raising the arguments that the east-west ditch is not an historic discharge location and that DOT is not legally allowed to discharge into the ditch. Nevertheless, Petitioner submitted evidence relevant to the claim that the east-west ditch is not an historical discharge point.

23. The modified project is located in an open drainage basin because the basin does not satisfy the definition of a closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable discharge for projects in an open basin is the historic discharge. BOR 4.2.a.1.

24. The District determines historic discharge first by reference to an existing or permitted site. BOR 4.2.a. The District considers a discharge at a point that has been permitted by the District to be a legally allowable discharge. The east-west ditch is a permitted discharge point in the original permit, and Petitioner does not challenge the original permit.

25. The modified project moves the discharge point in the east-west ditch to the west farther from Commerce Center property. That change does not alter the determination that the modified project utilizes an historic discharge point authorized in the original permit. The discharge point for the modified project is within a permitted location in the original permit. In any event, Petitioner failed to show any adverse impact caused by moving the discharge point in the east-west ditch further west away from the Commerce Center.

26. Putting aside the original permit, Petitioner claims that the east-west ditch did not historically extend west to

    U.S. 19 but was a detention pond required by the City of Clearwater as a condition of approval for the original development of the Commerce Center. The District looks back in time until 1984 to determine historic discharges. The historical drainage flow patterns for the locale of the modified project were in existence as early as 1971. The

    preponderance of evidence shows water flowing in the historical drainage pattern to the area of the east-west ditch.

27. Prior to 1984, Petitioner excavated the east-west ditch to further enhance the drainage flow pattern. This is the drainage flow pattern that exists at the project location today.

28. Another issue left unresolved by the stipulations between the parties is whether DOT provided reasonable assurances that the modified project will not cause adverse water quantity impacts to receiving waters and adjacent lands in accordance with the requirements of Rule 40D-4.301(1)(a). The appropriate standard for determining water quantity impacts for the modified project is the peak rate of runoff, rather than the volume of runoff. Compare BOR 4.2.a (defining allowable discharge in an open basin by reference to peak rates) with BOR 4.2.c (defining allowable discharge in a closed basin by reference to volume). Petitioner stipulated that there are no special basin criteria associated with the modified project, and Petitioner did not challenge the validity of the District's rules including those that measure water quantity impacts by peak rates of discharge.

29. The District required DOT to calculate pre-

    
    

    development and post-development rates of runoff based on the

    District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution. BOR 4.2.b. The data utilized by DOT are based on the assumption that rainfall will occur simultaneously over the entire basin. The assumption supports calculations based on a greater quantity of rainfall over the entire basin than would occur if it were assumed that rainfall began in a portion of the basin and then proceeded to cover the entire basin.

30. DOT provided reasonable assurances that post- development discharge rates in the modified project will not exceed pre-development rates. Post-development discharge rates for the east-west ditch and for Channel A are 50.7 and

    13.5 cubic feet per second ("cfs"), respectively. The respective pre-development discharge rates for the east-west ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the post-development rates of discharge for the modified project are less than those for the original project.

31. The area surrounding the modified project is flood- prone. Petitioner claims that the District should have reviewed the modified project for volume of runoff as well as rates of discharge.

32. District rules require the District to consider volume in closed basins but authorize the District to consider

    only rates of discharge in open basins, such as the Alligator Creek basin, unless otherwise specified. The only specified exception is for the Delaney Creek basin. While some open drainage basins can be flood-prone and volume-sensitive, District rules do not distinguish between open basins that either are or are not flood- prone. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2.

    The exercise of agency discretion that considered rates of discharge rather than volume was consistent with applicable rules and prior agency policy.

33. The evidence does not show any prejudice to Petitioner from the failure to consider volume. Petitioner failed to show that the amount of annual volume would increase once the modified project is completed.

34. Aside from volume, other District rules prohibit projects that cause adverse flooding to the property of others. Rule 40D-4.301(1)(b), in relevant part, requires DOT to provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property. Rule 40D-4.302(1)(a)1, in relevant part, requires the District to consider a system’s effect on the property of others.

35. The District measures the potential for flooding, in relevant part, by encroachment into the 100-year flood plain.

    District rules permit no net encroachment into the 100-year flood plain. However, the rules do allow for encroachment into the 100-year flood plain if the encroachment is offset.

36. The modified project encroaches into 7.72 acre-feet of flood plain. As partial compensation for the loss, DOT provides 2.46 acre-feet of equivalent excavation. DOT compensates for the remaining 5.26 acre-feet of encroachment by storage modeling.

37. Storage modeling consists of computer models that demonstrate how the ponds in the modified project will accommodate expected stormwater runoff from a 100-year, 24- hour rainfall event. The storage modeling assesses the storage capacity of the ponds on the basis of rainfall and tailwater. Tailwater is a downstream water condition that can be measured in terms of elevation, i.e., stage; and in terms of time, i.e., the hour in which a particular stage occurs.

38. DOT's storage modeling demonstrates that the ponds in the modified project will first drain downstream and then fill from backflow that occurs as tailwater stages increase. DOT provided the storage modeling compensation in Pond 4E by designing it to take in backflow from the east-west ditch and Channel A during a 100-year storm event. The increased backflow capacity of Pond 4E provides the additional storage

    necessary to preclude any net encroachment into the 100-year flood plain.

39. The storage modeling by DOT demonstrates that the modified project will not exceed the high water levels established in the Alligator Creek Study for a 100-year storm event. The storage modeling and the equivalent excavation provide reasonable assurances that the modified project will not cause adverse flooding to on-site or off-site property; and will not adversely affect the public health, safety, or welfare or the property of others.

40. The storage modeling complies with the requirements of in BOR 7.7.3 for the District to review variable tailwater stages if they have a significant influence on the project design. The District considered the impact of the modified project on variable tailwater conditions based on data utilized for the Alligator Creek Study.

41. Data utilized in the Alligator Creek Study are based on the assumption that rainfall during a 24-hour rainfall event will occur simultaneously over the entire basin. The assumption does not take into account 24-hour rainfall events that begin downstream from the modified project and increase tailwater stages before the ponds in the modified project can drain sufficiently to accommodate backflow from the increased tailwater stages.

42. Petitioner's expert opined that the modified project could cause flooding of Commerce Center property if: the tailwater stage downstream from the modified project were higher than that assumed in the study; and a rainfall event started downstream in the Alligator Creek basin and moved across the basin toward the modified project. The expert determined that the earlier increase in tailwater stages could cause the peak runoff from the storm at approximately hour 12 to coincide with peak high tailwater stages. The expert opined that the coincidence of high water level in Channel A and the east-west ditch during the time of peak runoff from DOT's drainage system could overload Channel A and the east- west ditch and cause flooding on Commerce Center property.

43. The opinion of Petitioner's expert was reasonable and credible as far as it goes. However, the expert opinion was not persuasive. Although the opinion was supported by underlying facts or data sufficient for admissibility, within the meaning of Section 90.705, the underlying facts and data were not persuasive.

44. The underlying facts and data consisted of some information from two storms identified as: a three-year storm on July 15, 2001; and Tropical Storm Gabrielle on

    September 14, 2001. Petitioner's expert assumed a set of circumstances under which he opined that the modified project

    would fail but did not support the assumption with persuasive evidence. Information from the two storms relied on by the expert does not outweigh the modeling done by DOT based upon the Alligator Creek Study, the District’s 25-year design storm event, and other relevant District criteria. Petitioner did not submit a model different from that submitted by DOT and did not submit any evidence that the storage modeling presented by DOT was incorrect.

45. The facts and data underlying the expert opinion are flawed for other reasons. The expert opinion utilizes numbers for the high tailwater mark in a 25-year design storm that were calculated in the Alligator Creek Study. Those numbers are based upon uniform rainfall across the basin.

46. If rainfall does not occur simultaneously over the entire basin, the water draining into the basin will be less than that assumed in the Alligator Creek Study for a 25-year design storm. In a 25-year storm in which rainfall does not occur simultaneously over the entire basin, the high water level in Channel A will not be 23.28 feet, as shown in the Alligator Creek Study, but will be some unknown lesser elevation. If rain does not fall uniformly across the entire basin, the peak hour of runoff from the modified project may not occur at hour 12, and the high water level in Channel A may not occur at hour 16.

47. The tailwater condition assumed in the Alligator Creek Study and the timing of that tailwater condition are both consistent with a simultaneous, across-the-basin rainfall event of 8-9 inches over a 24-hour period. In order to move the start of the tailwater condition, it would be necessary to recalculate the expected high tailwater conditions based upon rainfall occurring at different times throughout the basin.

    If a rainfall event is not uniform across the basin, the tailwater data underlying the expert opinion would decrease.

48. The design-storm underlying the expert opinion would produce a storm surge of such magnitude that it would likely flood 75 percent of Pinellas County. The resulting storm surge or high tide would be much larger than the rainfall from a 100-year storm.

49. Rule 40D-4.301(1)(c) requires DOT to provide reasonable assurances that the modified project will not cause adverse impacts to existing surface water storage and conveyance capabilities. Petitioner claims that the east-west ditch is either a detention or retention pond, within the meaning of BOR 1.7.5 or 34, and that the modified project will adversely affect the pond by discharging into it. The original ALJ established the law of the case in an Order on Motion to Strike that precludes Petitioner from raising this issue.

50. Nevertheless, Petitioner claims that the east-west ditch is either a detention or retention pond. No part of the east-west ditch, including that part widened by Petitioner in 1984, is a detention or retention pond within the meaning of BOR 1.7.5 and 34.

51. The post-development runoff rate into the east-west ditch from the modified project will be less than both the pre-development run-off rate and that rate previously authorized in the original permit. The post-development runoff rate from the modified project will not adversely affect any storage capabilities inherent in the ditch. DOT provided reasonable assurances that the modified project will not cause adverse impacts to existing surface water surface storage and conveyance capabilities.

52. Rule 40D-4.301(1)(e) requires DOT to provide reasonable assurances that the modified project will not adversely affect the quality of receiving waters. The modified project will utilize wet detention ponds to provide water quality treatment. BOR 5.2.a requires wet detention ponds to treat the first inch of runoff; include a minimum of

    35 percent littoral zone; and discharge the system’s treatment volume in no less than five days, with no more than one-half of the total volume being discharged within 2.5 days.

53. The wet detention ponds in the modified project provide adequate water quality treatment by allowing stormwater to be stored in each pond for five days and by allowing sediments to settle on the bottom of the pond. Vegetation will occur within the ponds and provide for the uptake of the nutrients in the water. Skimmers will retain oils and greases in the pond. The ponds in the modified project will hold more water for a longer time than those in the original permit. DOT provided reasonable assurances that the modified project will not adversely affect the quality of receiving waters in accordance with the criteria in BOR 5.2.a.

54. Petitioner's expert opined that water quality would be less than that required by District rules if the hypothetical events described in paragraphs 42 and 44 were to occur. However, Petitioner failed to provide persuasive underlying facts or data to support the expert opinion.

55. BOR 5.2.a requires water treatment for only the first one inch of runoff because that is where oils and greases are located. The remaining runoff during a 25-year, 24-hour storm does not require water quality treatment.

56. Rule 40D-4.301(1)(g) requires DOT to provide reasonable assurances that the modified project will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Section

    373.042. DOT satisfied the requirements of the rule by showing that during a 100-year storm event, the modified project will preserve off-site water levels.

57. Rule 40D-4.301(1)(i) requires DOT to provide reasonable assurances that the modified project is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. DOT satisfied the requirements of the rule. The relevant evidence provided by DOT is based on the Alligator Creek Study. The Study is accepted in the engineering field as accurate, and the parties stipulated to the accuracy and veracity of the information contained in the Study.

58. The modified project meets the conditions for permit issuance in Rules 40D-4.301 and 40D-4.302. The proposed project is located in a right-of-way dedicated for public highway purpose as required by Rule 40D-40.302(3)(a).

59. The modified project will not drain lands outside of the jurisdiction of DOT within the meaning of Rule 40D- 40.302(3)(b)1. The modified project will not lower the dry season groundwater table outside of the project area within the meaning of Rule 40D-40.302(3)(b)2. The modified project will not lower groundwater tables where doing so would adversely affect existing legal users. BOR 4.6.4.

60. The wet detention ponds in the modified project will be lined with an impermeable plastic liner which will "isolate" the stormwater from the adjacent groundwater table, will prevent the lowering of that table, and will preserve the water table as is. After installation of the liners, the water table will rise for approximately 30 days and then return to the pre-liner level. The modified project will not lower the groundwater table outside of the project area.

    CONCLUSIONS OF LAW

    
    

61. DOAH has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569(1) and 120.57(1). DOT has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). DOT must, by a preponderance of the evidence, make a prima facie showing that the modified project satisfies relevant requirements for issuance of the modified permit. J.W.C., 396 So. 2d at 787- 788. If DOT makes a prima facie showing of reasonable assurances, the burden of going forward with the proof shifts to Petitioner to present evidence of equivalent quality that is sufficient to refute the prima facie showing by DOT. J.W.C., 396 So. 2d at 789.

62. A determination of whether DOT has provided reasonable assurances is limited to a review of those portions

    of the modified project that are different from the original project. The time for challenging the original permit passed before Petitioner petitioned for an administrative hearing.

63. The parties stipulated that the modified project satisfies the requirements of Rule 40D-4.301(1)(d), (f), (h), (j), and (k). Rule 40D-4.301(1)(a)-(c), (e), (g), and (i) requires DOT to provide reasonable assurance that the modified project:

    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;

       
       

       (e) 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., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in sections 62-4.242(2) and (3), F.A.C., will not be violated;

       
       

       (g) will not adversely impact the maintenance of surface or groundwater levels or surface water flows established pursuant to Chapter 373.042, F.S.; [and]

       
       

       (i) is capable, based on generally accepted engineering and scientific

       principles, of being effectively performed and of functioning as proposed. . . .

       
       

64. Rule 40D-4.302 provides additional conditions for issuance of the modified permit. For surface water management systems located in, on, or over wetlands or other surface waters, DOT must show that the modified project is not contrary to the public interest. Rule 40D-4.302(1)(a).

65. Rule 40D-40.302(3) provides additional conditions of issuance for standard general environmental resource permits for public highway projects. Rule 40D-40.302(3) provides:

    1. The public highway project must be located within a right of way dedicated to the public for highway purposes.

       
       

    2. The public highway project must not:

       
       

       1. Drain lands outside the jurisdiction of the constructing or funding public body;

          
          

       2. Lower or have the potential for lowering the dry season groundwater table outside of the project’s design drainage area; and

          
          

       3. Interfere with natural drainage patterns or flows.

       
       

66. Rule 40D-4.301(3) provides:

    
    

    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.

    
    

67. Petitioner alleges that the modification permit should be denied because DOT lost the right to obtain

    ownership through its power of eminent domain. The argument is based on the two-dismissal rule found in Florida Rules of Civil Procedure Rule 1.420(a)(1), and the allegation that DOT has voluntarily dismissed two eminent domain actions.

68. If Rule 1.420(a)(1) were applicable, the rule would treat the second voluntary dismissal as an adjudication on the merits. The judicial doctrine of res judicata, rather than Rule 1.420(a)(1), would bar subsequent suits. See Olympia Mortgage Corp., v. Pugh, 774 So. 2d 863 (Fla. 4th DCA 2000). In order to determine the applicability of Rule 1.420(a)(1), a court must review the underlying facts of each case previously dismissed. Olympia Mortgage, 774 So. 2d at 866; Edmondson v. Green, 755 So. 2d 701 (Fla. 4th DCA 1999); Scutieri v. Tew, Spittler, Berger & Bluestein, P.A., 674 So. 2d 803 (Fla. 3rd DCA 1996). Petitioner did not submit evidence sufficient for a review of the underlying facts of the previous cases.

69. Rule 40D-4.101 addresses the necessary contents for environmental resource permit applications. Rule 40D-4.101(3) provides, in pertinent part:

    Notwithstanding the provisions of subsection (2), persons authorized by entities with the power of eminent domain may sign the application in lieu of the owner when applying on behalf of the entity

    . . . .

    
    

    Petitioner presented no evidence showing that the signature on the application was deficient. Nothing in Rules 40D-4.301 and

    40D-4.302 require ownership or the power of eminent domain as a condition for issuance of an environmental resource permit.

70. The BOR addresses the issue of whether volume is a consideration in open drainage basins. BOR 4.2 states:

    1. For a project or portion of a project located within an open drainage basin, the allowable discharge is:

       
       

       1. historic discharge, which is the peak rate at which runoff leaves a parcel of land by gravity under existing site conditions, or the legally allowable discharge at the time of permit application; or

          
          

       2. amounts determined in previous District permit actions.

          
          

    2. Unless otherwise specified, off-site discharges for the existing and developed conditions shall be computed using the Southwest Florida Water Management District’s 24-hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition II.

       
       

    3. For a project or portion of a project located within a closed drainage basin, the required retention volume shall be post- development runoff volume less the pre- development volume computed using the Southwest Florida Water Management District’s 24-hour/100-year rainfall map and the Soil Conservation Services type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition II. The total post-development volume leaving the site shall be no more than the total pre-development volume leaving the site for the design 100-year storm. The rate of runoff leaving the site shall not cause adverse off-site impacts.

    Maintenance of pre-development off-site low flow may be required in hydrologically sensitive areas.

    
    

71. DOT demonstrated that the modified project satisfies relevant criteria in BOR 4.2. The allowable discharge for the modified project is set by the original permit, a previous District permit action. The discharge rate from the modified project will be less than the rate authorized in the original project. Therefore, DOT satisfies the criteria in BOR 4.2a.

72. DOT performed the modeling for determining the rate of discharge for the modified project and the impacts on downstream property by utilizing data from the District’s 24- hour, 25-year rainfall maps and the Soil Conservation Service’s type II Florida Modified 24-hour rainfall distribution with an antecedent moisture condition II. The Alligator Creek Study used the District’s 25-year design storm as the basis for its findings, and the DOT relied on the Alligator Creek Study for DOT's modeling. DOT satisfied the criteria in BOR 4.2b.

73. Petitioner’s objections regarding these criteria are two-fold. First, Petitioner believes that volume of discharge should be considered on the ground that the Alligator Creek basin is in a flood-prone area. Second, Petitioner believes that the off-site discharges should be computed using assumptions not contained in BOR 4.2b.

74. The first objection fails to address the fact that the original permit authorizes discharge rates that are greater than those authorized in the modification permit. In effect, Petitioner's argument attempts to reopen the original permit and attack the District's prior decision. The discharge rate for the modified project does not exceed that of the original project.

75. Even if the first permit were not binding, the BOR distinguishes between closed drainage basins and open drainage basins. Volume of discharge is considered in the former but not in the latter. The only exception to this rule is another rule which sets out special criteria for one open drainage basin, the Delaney Creek basin. The parties stipulated that no special criteria apply to the Alligator Creek basin, and there is no legal authority to consider volume of discharge in the open basin at issue in this proceeding. The District cannot deviate from a valid existing rule. Section 120.68(7)(e)2.

76. DOT presented a prima facie case that it has provided the reasonable assurances necessary to obtain Standard General Environmental Resource Permit No. 44011760.010. Petitioner failed to present sufficient evidence of equivalent quality showing that DOT is not entitled to the permit.

RECOMMENDATION

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

RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Standard General Environmental Resource Permit No. 44011760.010.

RECOMMENDATION

DONE AND ENTERED this 17th day of December, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL MANRY

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 17th day of December, 2001.

COPIES FURNISHED:

Robert C. Downie, II, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

James A. Helinger, Jr., Esquire James A. Helinger, Jr., P.A.

814 Chestnut Street

Clearwater, Florida 33756

Christine C. Stretsky, Esquire Mark F. Lapp, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34609-6899

E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34609-6899

Teri L. Donaldson, General Counsel Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

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: 01-002571

Orders for Case No: 01-002571