09-000948 Thomas L. Sheehey vs. Michael Chbat And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, January 14, 2010.

Summary: Applicant to install culvert extension in Walton County failed to make reasonable assurances that neighbor's property would not be flooded with stormwater that otherwise would have drained into Choctowetchee Bay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS L. SHEEHEY, )

)

Petitioner, )

)

vs. ) Case No. 09-0948

)

MICHAEL CHBAT AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard by David M. Maloney, Administrative Law

Judge of the Division of Administrative Hearings, on

September 14 and 15, 2009, in Shalimar, Florida.

APPEARANCES

For Petitioner Thomas L. Sheehey:

David Michael Chesser, Esquire

Chesser & Barr, P.A.

1201 Eglin Parkway

Shalimar, Florida 32579

For Respondent Michael Chbat:

John L. Wharton,Esquire

Frederick L. Aschauer, Jr., Esquire

Rose, Sundstrom & Bentley, LLP

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

For Respondent Department of Environmental Protection:

Amanda Gayle Bush, Esquire

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Michael Chbat's 2008 application for a Wetland

Resource Permit (WRP) to construct a culvert extension across

his property in Walton County, Florida, should be approved?

PRELIMINARY STATEMENT

This proceeding concerns a permit the Department of

Environmental Protection (the "Department" or "DEP") denominated

an "Amended Wetland Resource Permit", (the "Amended Permit").

It was issued by DEP on December 19, 2008, to Michael Chabat

("Chabat" or "Respondent Chabat").

Eighteen days after the Amended Permit's issuance,

Thomas L. Sheehey ("Petitioner" or "Sheehey") filed with DEP a

Petition for Formal Administrative Hearing challenging it.

The Department referred the petition to the Division of

Administrative Hearings (DOAH) and asked that an administrative

law judge be designated to conduct the proceeding. The petition

was assigned Case No. 09-0948.

Chbat filed a motion to dismiss that was granted. Sheehey

filed an amended petition on May 14, 2009. The case was set for

hearing on the amended petition in August of 2009 and re-set to

commence on September 14, 2009.

Five days prior to the hearing, on September 9, 2009, Chbat

and the Department filed a motion in limine. The motion sought

an order that would prevent Petitioner from entering evidence

that would support a bar both to Chbat's application and the

issuance of the Amended Permit by operation of the doctrine of

res judicata . The motion also sought to preclude any evidence

that DEP was required to enforce a settlement agreement entered

in March of 2007 between Mr. Sheehey and Mr. Chbat.

On the next day, September 10, 2009, the parties filed a

Joint Pre-hearing Stipulation. The stipulation made reference

to the subject of the motion in limine. Listed among the facts

which remain to be litigated was: "Whether the Amended Wetland

Resource Permit presents any new issues from those contested and

settled in the original permit issued May 9, 2007, Number 66-

0235320-001-DF." Joint Pre-hearing Stipulation , at 16. Along

the same line, the stipulation listed among the issues of law

which remained to be litigated: "Whether or not the Proposed

Amended Permit is res judicata ." Id. at 17.

The case proceeded to final hearing as scheduled on

September 14, 2009. At the outset, DEP and Chabat's motion in

limine was argued by the parties. A ruling was entered that res

judicata was not applicable to the proceeding and that the

settlement agreement entered in March of 2007 could not be

enforced in this proceeding to require the Department to reject

Chbat's application or deny the Amended Permit. The settlement

agreement, however, was not excluded from the record or as

evidence; it was allowed to be introduced as background.

As the applicant with the burden of proof, Chbat proceeded

first. Three witnesses testified in the case-in-chief: Michael

Chbat, Petitioner; Mark Thomasson, P.E., accepted as an expert

in stormwater engineering; and, Larry O'Donnell, an

Environmental Manager in the Department's Wetland Resource

Permitting Program.

Chbat offered ten exhibits into evidence. Marked for

identification as Chbat Exs. 1-10, all were admitted. Two of

the ten exhibits, Chbat 9 and 10, were depositions of Les

Porterfield, P.E., president and owner of Porterfield

Engineering; and Clifford Street, P.E., the Department's

Supervisor for Engineering Support for Submerged Lands and

Environmental Resources Program of the Northwest District, both

of whom testified at the final hearing.

The Department proceeded next. It presented two witnesses:

Mr. O'Donnell, who was re-called and accepted as an expert in

the application of state rules and statutes in wetland resource

permitting; and Mr. Street, accepted as an expert in stormwater

engineering. The Department offered two exhibits, Deptartment

Exhibits 1 and 2 which were admitted into evidence.

Petitioner proceeded after the Department. Testimony was

accepted from four of the witnesses Petitioner presented:

Thomas Eugene Cummins, a resident of Lot 5 in La Grange Bayou;

Thomas Sheehey, Petitioner and resident of Lot 8 in La Grange

Bayou; Mr. Porterfield, accepted as an expert in stormwater

engineering and wetland permitting; and, Todd Wilkinson, vice

president of Environmental Services, Inc., accepted as an expert

in the application of state rules and statutes in wetland

permitting and also in the field of marine biology. Mr. Sheehey

also presented the testimony of Ms. Julie Dickinson, a DEP

environmental supervisor with the Department's Wetland Program.

The testimony of Ms. Dickinson, however, was stricken.

Petitioner offered 11 exhibits into evidence, marked for

identification as Petitioner's Exhibits 1-11. All were

admitted.

After the conclusion of Petitioner's case, Chbat re-called

himself as a witness and presented the live testimony of

Mr. Street in rebuttal.

The three-volume transcript of the hearing was filed on

October 26, 2009. It was ordered that proposed recommended

orders were due on November 30, 2009. A joint motion for

extension of the time to file proposed recommended orders was

filed on the basis of errors in the transcript. On December 7,

2009, an order was entered giving the parties until December 11,

2009 to file their proposed orders. The next day a corrected

volume of the transcript was filed. The parties all timely

filed Proposed Recommended Orders, which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

La Grange Bayou Estates

1. La Grange Bayou Estates is a residential subdivision in

Freeport, Walton County, Florida.

2. The subdivision lies to the north of the shoreline of

Choctawhatchee Bay. It can be viewed as divided roughly in half

between bayfront lots south of an east-west road that transects

the subdivision and lots that are north of the road.

3. The subdivision is platted and the plat is in the

public records of Walton County. Filed with the Clerk of the

Circuit Court in and for Walton County, Florida, on

September 15, 1982, the plat ("the 1982 Plat") shows 29

residential lots in the subdivision as of that date. See

Petitioner's Ex. 6.

4. Lots 1 through 16, according to the 1982 Plat, are the

bayfront lots, south of a 40-foot wide road designated as a

private road in the plat. That road is now known as Alden Lane.

5. Wetlands over which the Department has jurisdiction

("jurisdictional wetlands") comprise much of the southern

portion of bayfront lots and the drainage easement. Among the

bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot

8 which belongs to Mr. Sheehey. A 50-foot easement lies between

Lot 9 and Lot 8 and is described more fully below. The presence

of jurisdictional wetlands on Mr. Chbat's lot over which he

hopes to install the culvert extension requires that he obtain a

WRP.

6. To the north of Alden Lane are lots numbered by the

1982 Plat as 17 through 29. The lots are served by Alden Lane

and, in what is roughly the northeast quadrant of the

subdivision, by two other roads. One of the roads is shown on

the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial

photograph introduced into evidence by Chbat designates the road

"unnamed." See Chbat Ex. 5. The other is designated as a

"graded county road," on the 1982 Plat. By 2006, it had come to

be known as Beatrice Point Road. Id.

7. Beatrice Point Road transects a pond that runs roughly

340 feet (excluding about 30 feet of roadway) in a northeasterly

direction from Alden Lane to the southern edge of an area north

of the subdivision shown on the 1982 Plat to be un-platted. The

pond is most likely the result of a "borrow pit" dug in order to

obtain fill for the construction of the roads when the

subdivision was initially developed.

8. The southern boundary of the pond lies along

approximately 140 feet of Alden Lane's northern edge. The pond

is across the street from Lots 9, 10 and 11 of the subdivision.

The pond is also not far northeast of the 50-foot easement (the

"Drainage Easement") between Lots 9 and 8.

The Drainage Easement

9. The Drainage Easement is just to the west of Lot 9. It

is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id.

The 50-foot wide Drainage Easement runs the length of the

western boundary of Lot 9 and the length of the eastern boundary

of Lot 8. The northeast corner of the Drainage Easement is

approximately 30 feet from the southwest corner of the pond

separated from the pond by the roadway of Alden Lane.

10. The eastern boundary of the Drainage Easement is

226.37 feet in length, or if taken to the middle of Alden Lane,

246.3 feet. The western boundary is 206.13 feet long or if

taken to the middle of the road, 226.65 feet.

11. The purpose of the Drainage Easement, as is evident

from its denomination in this recommended order, is drainage.

As Mr. Street definitively put it at hearing, it is "now and

always has been intended to drain stormwater to the [B]ay."

Tr. Vol. III at 179.

12. Mr. Street's opinion of the function of the Drainage

Easement is supported by drawings submitted by Mr. Chbat as part

of the WRP application.

13. The drawings show that the Drainage Easement's

function is facilitated by three culverts north of the Easement

(referred to during the hearing as "pipes") each of which is

intended to direct stormwater at its point of discharge toward

the Drainage Easement. See Chbat Ex. 1.

14. One of the culverts ("the Drainage Ditch Culvert")

serves a drainage ditch that is to the north of the Easement and

Alden Lane. According to the drawings, the drainage ditch lies

on the other side of the "un-named road" from the pond, that is,

to the west of the pond, and is some 40-to-50 feet north of the

Drainage Easement.

15. The Drainage Ditch Culvert extends from the ditch to

the southern half of Alden Lane from where it appears from the

application's drawings that stormwater would be conveyed to the

western side of the Drainage Easement along it's border with Lot

8 and on toward the Bay. In fact, it is a functioning culvert

that "conveys water from a swale on the side of the road into

the [D]rainage [E]asement." Tr. 64. Once in the Drainage

Easement, according to the drawings, the water should flow into

the Bay out of a "cut," id. , that is labeled on the drawings as

an "existing trench." See Chbat Ex. 1. The trench, however,

has been filled in with sand by tidal activity or sediment

deposited by stormwater or both. The trench has not been

maintained, and it no longer exists.

16. The other two culverts (the "Pond Culverts") lie east

of the Drainage Ditch Culvert. They catch overflow from the

pond caused by stormwater and convey it under and through Alden

Lane toward the Drainage Easement.

17. The westernmost Pond Culvert (the "Western Pond

Culvert") appears to terminate in Alden Lane near its southern

edge just north of the Easement. At the time of hearing,

however, it was not functioning properly. "[I]t is full of sand

and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west

is clogged and it is not functioning." Tr. Vol. I at 64. It is

also at an elevation that would keep it from serving drainage

purposes in all but the most severe storm events. See Chbat

Ex. 9 at 22.

18. The other Pond Culvert, (the "Eastern Pond Culvert")

terminates in the northwest corner of Lot 9 at the border

between Lot 9 and the Drainage Easement about 10 feet southeast

of the terminus of the Western Pond Culvert. The Eastern Pond

Culvert is the culvert with which the Amended Permit is

concerned, that is, it is the culvert to be extended by the

permit. Calling it a "pipe," Mr. Street offered the following

about the assistance the Eastern Pond Culvert offers in

conveying stormwater into the Drainage Easement and down to the

Bay:

There is currently a pipe that discharges

into that easement. There

. . . was an attempt to place the water from

the . . . pond into the easement. And the

natural flow of water on this entire

property from the road to the [B]ay is north

to south. At some point, at least 2004,

that drainage easement contained a

conveyance at its southern end that would

safely discharge stormwater to the [B]ay.

Tr. Vol. III at 179-80.

Petitioner Sheehey and Lot 8

19. Thomas Sheehey is the owner of Lot 8, where he has a

residence in which he makes his home. He has lived in the

residence approximately five years. During that time,

Mr. Sheehey has fished in the Bay and enjoyed the use of his

kayak and his waverunner on the Bay. He also enjoys "sitting

down having a cup of coffee and looking at it," tr. vol. III at

151, as well as watching his neighbors fish. The recreational

uses to which he puts the Bay is the reason he chose to purchase

a bayfront lot in La Grange Bayou Estates.

20. Over the period of time that he has resided on Lot 8,

Mr. Sheehey has observed the effects of rain events on his lot

and well as lots close to Lot 8. He has also taken pictures of

his property and the near-by lots. Among the photographs were

four taken after rain events or "after a wet period," tr. vol.

III at 88, at some point in the last four years. The four

photos were introduced as a composite exhibit, Petitioner's Ex.

2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey

could not specify when the pictures were taken in the past four

years other than that if a picture had a certain dock in it,

then it was taken after January of 2009.

21. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot

looking toward the Bay. It shows an area of the lot under water

separated from the Bay by a ridge.

22. Petitioner's Ex. 2B is a picture taken from Lot 13

looking west across Lots 12, 11, 10, 9 "down through . . . 8."

Tr. Vol. III at 86. Much of what is photographed is among trees

and vegetation emerging from water standing above the surface of

the soil.

23. Petitioner's Ex. 2C is a picture taken from Alden Lane

looking south across Mr. Chbat's property. It shows a wide

swath of water that extends from the road across most of the

property to the Bay. The water is either in a swale or

constitutes overflow outside the swale.

24. The most recent of the four is Petitioner's Ex. 2D,

which shows the dock referred to by Mr. Sheehey that was built

in early 2009. It is a picture taken from Lot number 13 toward

the west through Lots 12, 11, 10, 9. Like the others, it shows

vegetation standing in water to the north of the Bay. Taken

together, the four pictures in Petitioner's Exhibit 2

demonstrate that significant portions of the lots depicted are

under water following sufficient amounts of recent rain.

25. The four photographs that comprise Petitioner's

Exhibit 2 are not the only photos taken by Mr. Sheehey that were

introduced into evidence. Three other photographs of

Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were

admitted following testimony about them from a long-time

observer of the flow of water from Alden Lane to the Bay.

A Long-time Observer

26. Thomas Eugene Cummins had lived in La Grange Estates

"[t]wo months shy of 20 years," tr. vol. III at 7, at the time

of his testimony. His house was the fourth to be constructed in

the subdivision.

27. Over the two decades of his residence, the pond

between Alden Lane and the property north of the subdivision has

been in existence. Consistent with the drawings submitted to

DEP as part of the application, when asked where the pond

overflows today, Mr. Cummins answered "it drains under Alden

Lane on to Mr. Chbat's lot." Tr. Vol. III at 8.

28. Asked by Mr. Chesser at hearing, "When the water comes

out of the pond, is it possible to know where it spreads?" 1/

Mr. Cummins testified:

On really heavy rains, I have watched the

normal color of the pond change from its

dark blackish gray color into the reddish

color that the clay has washed down into it,

flow under Alden Lane and on to Mr. Chbat's

lot, and then proceed west through the

wetland on lots eight, seven, six, and my

five, and turn reddish color even in my lot.

Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red

color" of the stormwater: red clay introduced to La Grange

Estates by the County half a decade earlier. Mr. Cummins

testified:

Beatrice Point Road, which is the road that

runs over the pond, about five years ago the

county did some repair on the road and

actually put red clay in certain spots to

even it out.

Tr. Vol. III at 9. Prior to the county's work on the road

referred-to by Mr. Cummins, there had been no red clay in the

neighborhood. Alden Way, for example, has no red clay. It is a

road composed of shell. The only red clay in the subdivision is

that which is on Beatrice Point Road.

29. The water that runs onto Mr. Cummins' lot following a

heavy rain rises to as much as 12 inches. 2 / The water rises as

high as it does because it is held back by a naturally-occurring

land formation between the Bay and Mr. Cummins property. This

geo-formation was referred-to at hearing as the ridge line or

the ridge.

The Ridge

30. The Ridge was described by Mr. Cummins as a vegetated

mass of earth that most of the time, even in heavy rains, sits

above the water that collects on the bayfront lots of La Grange

Estates.

31. The Ridge prevents a substantial amount of stormwater

runoff from entering the Bay from the wetlands on the southern

portion of the subdivision's bayfront lots. For that reason,

the ridge is called "our upland, 3 / " tr. vol. III at 13, according

to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in

width "anywhere between 10 feet . . . up toward Mr. Chbat's lot,

down to [Mr. Cummins'] lot where its around 30 or 40 feet

[wide.]" Id. (It may extend, in fact, across all of the

bayfront lots.) The ridge meanders not far from the shoreline.

Id. In some places it is as narrow as five feet. The height of

the ridge varies as well from as low as one foot to as high as

two and half feet.

32. Mr. Street also testified about the Ridge, referring

to it in his testimony as a "ridge line":

Now, there is a ridge line, and there's been

a lot of testimony about this ridge line,

that it exists across all of the lots. My

testimony was, essentially, related to the

review that I did, which was primarily

associated with lots eight and nine, and the

drainage easement between them. And from

what I can tell, the elevation of that ridge

line is give or take three. Elevation

three, not a height of three. An elevation

of three. It could be lower, and perhaps,

is higher. And its subject to the vagaries

of a number of factors, flow of stormwater,

wave action, tidal influence, and the like.

And these accretions and depositions of sand

over time change that ridge line. And

sometimes, it opens up. And sometimes it

may not have a natural opening, depending on

where you are along that entire stretch of

beach.

* * *

[T]o the extent there is an opening in that

ridge line, water will flow naturally to the

bay.

Tr. Vol. III at 180-181. An "east west flow of water," tr. vol.

III at 181, along the bayfront lots, that is, a flow of water

either in an easterly direction or a westerly one is contrary to

the flow from Alden Lane north of the lots to the Bay south of

the lots. Whether flowing east or west, the water in the

southern portions of the bayfront lots is "controlled by the

ridge line." Id. In other words, stormwater that flows from

north to south across the bayfront lots, including Mr. Chbat's

and the Drainage Easement, is going to collect and begin to flow

from east to west or west to east at some point north of the

Ridge before it drains into the Bay. The only exception to

east-west flow, as made clear by Mr. Street, is when and if

there is an opening in the Ridge that allows the water otherwise

held back by the Ridge to flow southward into the Bay.

33. The east-west flow of the water along the Ridge was

described at hearing as "unnatural." Id. In fact, it is not

un-natural. The Ridge is the cause of the east-west flow and,

as Mr. Street testified, the Ridge is the result of natural

processes such as tidal influence, wave action, accretion and

deposition of sand. 4 /

34. The Ridge is shown in Petitioner's Exhibit 7A, 5 /

another photograph taken by Mr. Sheehey. The ridge as shown in

the picture is well vegetated and above water to its north and

higher than the Bay to its south. It is quite clear that if

there is no opening in the ridge to the Bay, stormwater north of

the ridge is forced to flow in east-west directions and is

prevented from flowing into the Bay.

35. Petitioners' Exhibit 7B is a photograph of the

southern terminus of a swale ( see paragraphs 40 - 49, below) on

Mr. Chbat's property. It shows the swale cut through the Ridge.

Water, however, does not appear to be running from the end of

the swale into the bay. It appears that the end of the swale is

a few feet from the Bay separated by a narrow sandy area on the

shore. Nonetheless, the photograph shows that there is

potential for stormwater to flow from the swale when the swale

has more water in it.

36. Petitioner's Exhibit 7C is a picture of the pond 6 /

across the street from Mr. Chbat's Lot 9.

Mr. Chbat and Lot 9

37. Michael Chbat is the owner of Lot 9. He purchased the

lot "[t]o build a house on it." Tr. Vol. I at 22. Because he

has family close by (in Fort Walton Beach), Mr. Chbat expects to

use a house built on the lot for weekend visits. His ultimate

aspiration is to live in a house on Lot 9 after he retires from

his position as a construction engineer with the City of

Tallahassee.

38. At hearing, Mr. Chbat described Lot 9 on the day he

bought it: "the lot was overgrown. It drained from north to

south. It had water standing on it. And it had a pipe [the

Eastern Pond Culvert] on the northwest corner discharging."

Tr. Vol. I at 23.

39. He also described the state of the lot at the time of

hearing. The Eastern Pond Culvert on the northwest corner was

still there. The lot had been cleared to some extent to rid it

of invasive species. Overgrown vegetation was trimmed or

cleared to make room for a driveway permitted by the Department

and "a parking pad in the front area of it, as well as an access

pad in the uplands." Id. A dock had also been constructed from

the property into the Bay. The most significant difference

between the lot at the time of purchase and the lot at the time

of hearing for purposes of this proceeding is that the lot now

has a swale (the Swale) that runs from the point of discharge of

the Eastern Pond Culvert "all of the way to the bay area." Id.

The Swale

40. The Swale was put in sometime after March 20, 2007, as

the result of a Settlement Agreement fully executed on that date

"By and Between Michael Chbat and Thomas L. Sheehey."

Petitioner's Ex. 10.

41. The Settlement Agreement followed events that

commenced in 2004 when Mr. Chbat filed an application (the "2004

Application") with DEP for a WRP primarily to construct a house

and a boardwalk leading from the house on Lot 9 to a dock in the

Bay. The 2004 Application also proposed the extension of the

Eastern Pond Culvert with a "pipe" along the western boundary of

Chbat's property in a manner substantially similar to the

culvert extension allowed by the Amended Permit that is the

subject of this proceeding.

42. On October 28, 2005, DEP proposed that the 2004

Application be granted. The permit (the "Proposed Original

Permit") was assigned No. 66-0235320-001-DF. See Petitioner's

Ex. 10, at 2.

43. The Proposed Original Permit was challenged by

Mr. Sheehey when he "filed a Petition for Administrative Hearing

contesting certain action authorized under the [Proposed

Original] Permit . . . specifically the relocation of a drainage

pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the

petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the

Settlement Agreement that they had "determined that it is in

their best interests to settle this matter amicably pursuant to

the terms hereafter". Id.

44. Among the terms is that Chbat would file an Amended

Application. See id. The agreed-to amendment to the 2004

Application was attached to the Settlement Agreement as Exhibit

"A," a drawing of a "Drainage Swale Plan," produced by Genesis

Group for Mr. Chbat. The drawing depicts a swale that runs from

the discharge point of the Eastern Pond Culvert nearly the full

length of the western boundary of Lot 9 to the Bay. See Exhibit

"A" to Petitioner's Ex. 10. The Swale was designed to take the

place of the 2004 Application's proposal for a "pipe" 7 / attached

to the point of the discharge from the Eastern Pond Culvert.

The Settlement Agreement received the support of DEP because the

Department believed that a swale would assist in improving the

quality of the stormwater discharged to the Bay over the

untreated discharge from the end of the "pipe."

45. Pursuant to the terms of the Settlement Agreement the

2004 Application was amended. The Department amended the

Proposed Original Permit accordingly and final agency action was

taken with the issuance of a permit to Mr. Chbat (the "Final

Original Permit") found in DEP Permit File No. 66-0235320-001-

DF.

Installation of the Swale

46. The Swale was installed, but it did not work as

intended. The result of the Swale's installation was more water

on the lot rather than less.

47. Mr. Chbat described the after-effects of the Swale:

"it started bringing more water to the lot . . .". Vol. I

at 31. The increased amount of water is the result of several

factors, one of which is tidal influence: the tide from the Bay

pushes water into the Swale. "[A]bout halfway on the swale

. . . that water from the bay was meeting the water from the

pipe . . .". Id. The water from the Bay tide and the

stormwater conveyed by the Swale would meet at "about the middle

of the span of the swale." Id. The result was "a lot more

water," id. , on the lot.

48. Mr. Thomason confirmed Mr. Chbat's assessment that the

reason the Swale did not function as effectively as necessary is

tidal flow onto Lot 9 from the Bay particularly from high winds.

But tidal flow onto Lot 9 and the interruption in the discharge

of stormwater through the Swale are not the only problems.

There is also a maintenance factor that accompanies tidal flow:

sand deposition.

49. Mr. Thomason elaborated: "[D]uring storm events or

[just normal] wave action in the bay, sand is brought back up on

to . . . the sandy area at the end of [Lot 9] next to the

[Bay.]" 8 / Tr. Vol. I at 62. The influx of sand onto Lot 9 is

not just a problem for adequate functioning of the Swale. The

Drainage Easement has "the same problem." Id. Both the Swale

and the Drainage Easement are plagued by deposition of sand

pushed landward by normal tidal influences and storm events.

Maintenance of the Swale and the Drainage Easement, therefore,

would assist the drainage of stormwater into the Bay.

50. The tidal influence and maintenance issues that

Mr. Chbat encountered with the Swale led him to apply for a

different and new permit. That application was filed in 2008.

The 2008 Application

51. Mr. Chbat filed a "Joint Application for Works in the

Waters of Florida" with DEP on August 1, 2008 (the "2008

Application"). See Chbat Exhibit 1.

52. The work to be approved was similar to the work

originally proposed in the 2004 Application in that both

applications proposed installation of a "pipe" to be fixed to

the discharge point of the Eastern Pond Culvert that would run

along the western boundary of Lot 9 toward the Bay.

53. A description of the work is contained in Section 10

of the 2008 Application: "Extension of an existing stormwater

pipe within a private lot approximately 150 feet. The slope for

the proposed pipe extension will be at minimum so that

stormwater will be treated further, and minimizing erosion."

Chbat Ex. 1 at 3.

54. After the filing of the 2008 Application, Mr. Chbat

learned that Mr. Sheehey objected to the newest Chbat proposal

because he believed 150 feet is not lengthy enough to clear the

Ridge. See Chbat Exhibit 2. In order to cure the objection,

Mr. Chbat proposed a modification to the 2008 Application. He

attached a "sealed and signed drawing," id. , to a letter dated

September 18, 2008, that he submitted to DEP. The drawing shows

the extension to be 177 feet, 27 feet more than initially

proposed by the 2008 Application. The additional 27 feet was

intended to ensure that the discharge would be directly into the

Bay in order to "eliminate any possible run-off impact to

adjacent properties." Id.

55. The modification was accepted by DEP." See exhibit

number 1 9 / attached to the Amended Permit, Chbat Exhibit 4.

56. There was conflicting evidence in the proceeding on

whether the outfall from a culvert extension of 177 feet will be

bayward of the Ridge. The issue was put to rest by Mr. Street’s

testimony in rebuttal at the hearing. See Tr. Vol. III at 194

and 203-4. His testimony establishes that the point of

discharge at the end of the culvert extension will clear the

Ridge so that the discharge will be directly into the Bay.

The Mound

57. The culvert extension is designed at an elevation and

with cover (presumably sod). The extension runs through

jurisdictional wetlands and segments them. It does not,

however, isolate any portion of the wetlands. The wetlands on

Mr. Chbat's property and those to the immediate east and west of

it, therefore, will retain their status as jurisdictional

wetlands should the extension be installed.

58. With its sod cover, the culvert extension will be a

mini-berm (or a "mound" as Mr. Street called it) at an elevation

of 17 to 18 inches above grade. Water that pools to its west

will no longer be able to flow eastward of the mound (except

rarely under the most extreme weather events.) Conversely,

water that collects to its east will no longer be able to flow

westward of the extension.

59. It would have to be a severe storm event for water to

rise above the mound. Mr. Chbat has never seen water rise to 18

inches above grade and Mr. Cummins testified the highest water

ever gets on his property is roughly 12 inches.

60. The Department approved the 2008 Application as

modified to lengthen the extension to 177 feet and issued the

Amended Permit. But an incorrect and critical assumption was

made during review of the application that related to the mound.

Review of the 2008 Application

61. During his review of the application, Mr. Street, as

DEP's stormwater engineer, assumed from the drawings that the

Drainage Easement is functional. 1 0/ The assumption was expressed

in Mr. Street's testimony in the Department's case-in-chief:

Q [D]id you determine whether the pipe, as

it would be mounded . . . [the culvert

extension covered in sod] . . . would create

problems for storm water flow?

A I looked at that. There were two

conclusions that I drew. One was that the

mound would create a higher water elevation

on the Chbat property east of the mound, but

would not create standing water west of the

mound extending into the [Drainage E]asment

. . . . Which on the drawings that I

reviewed showed an existing trench at the

south end of that easement. And it was my

opinion that any water that fell west of the

mound would exit through the easement.

Tr. Vol. II at 92 (emphasis added.)

62. Mr. Street's assumption that water would not pool to

the west of the mound in the Drainage Easement and toward Mr.

Sheehey's property was contradicted by Mr. Sheehey's stormwater

engineer, Mr. Porterfield.

THe Porterfield Testimony and Support for It at Hearing

63. The testimony at hearing of Mr. Porterfield, who

conducted a site visit, established the opposite of what

Mr. Street assumed. The volume of stormwater runoff that pools

east of the mound, that is, water on Lot 9, will not be as great

as the volume as the water that pools west of the mound.

64. Water that would have flowed onto Lot 9 from the

Eastern Pond Culvert will flow directly to the Bay via the

culvert extension. The extension will also protect the

Drainage Easement and Lot 8 from water that would have flowed

from the Eastern Pond Culvert onto that property. But there is

a significant difference between stormwater to the west of the

extension and to the east. To the extension's west, the

Drainage Easement and Lot 8 will have to contend with stormwater

from the Drainage Ditch Culvert, the culvert north of Alden Lane

that does not convey stormwater from the pond but that like the

Pond Culverts has a discharge point directed at the Drainage

Easement.

65. How often and to what extent pooling of stormwater

will occur west of the mound due to its presence is difficult to

determine on the state of this record. 11/ No studies or analyses

of the likelihood and severity of storm events and the volumes

of stormwater runoff that would be produced by them were

conducted by any of the stormwater engineers in the case nor

were any such analyses done with regard to pooling caused by the

presence of the covered culvert extension. The testimony of

Mr. Porterfield, however, and other evidence, demonstrates that

that additional collection of water west of the mound caused by

the mound will occur following heavy rain.

66. Mr. Street was present in the hearing room throughout

the entire hearing, including during the presentation of

Mr. Sheehey's case. As Mr. Street candidly testified on

rebuttal after he had heard all the evidence:

I would also maintain that the drainage

easement which has signs of a historical

usage as a drainage easement with a trench,

in fact, that conveys water safely to the

bay, that should be re-established and

maintained . That’s what it’s there for.”

Tr. Vol III at 181 (emphasis added.)

67. Thus, it became clear to Mr. Street after listening to

all the evidence in the case that the Drainage Easement has not

been properly maintained. The trench that was expected to carry

stormwater toward the Bay no longer exists.

68. In short, the testimony of Mr. Street, for all his

many strengths as a witness, falls short of supporting the

position of the Department and Mr. Chbat. Having never visited

the site, 1 2/ he approved the project on the basis of drawings

that do not conform to the on-site physical reality. When

presented with the evidence at hearing that the Drainage

Easement is not functioning, he championed re-establishment and

maintenance of the Drainage Easement.

69. Mr. Chbat placed part of the Swale's functionality

problem on the tide pushing stormwater northward but his case

also recognized the maintenance problem caused by deposition of

sand that besets the Swale. Mr. Thomason, moreover, recognized

that the Drainage Easement has the same maintenance issue.

Mr. Chbat's stormwater engineer testified

During storm events or just normal wave

action in the bay, sand is brought back up

on to. . . the sandy area at the end of

[Chbat's] lot next to the water. And so

that . . . tends to inhibit the natural flow

down the swale . . . we have the same

problem on the drainage easement . . . where

sand builds up in that discharge .

Tr. Vol. I at 62 (emphasis added).

70. From this record, it is clear that neither the Swale

nor the Drainage Easement functions properly. Their functional

status, moreover, is due in significant part to lack of

maintenance. It may be that maintenance ultimately will not

solve the problem; maintenance efforts to keep the Swale and

Drainage Easement clear of the sand deposited by tidal activity

may require too much effort for them to be reasonably required.

But that evidence was not produced. Indeed, the record was

silent as to any maintenance efforts with regard to the Swale by

Mr. Chbat or with regard to the Drainage Easement by the owner

of the easement.

71. The record is also silent as to whether DEP voiced any

concern about the maintenance issues that beset the Swale. It

is clear that concern was not raised by the Department in regard

to the Drainage Easement until the rebuttal phase of the

hearing, since the assumption was made that the easement was

properly maintained.

72. Whatever communication may have occurred with regard

to maintenance issues among the parties, the Department issued

the Amended Permit. 1 3/

73. The Permit/Authorization Number for the Amended Permit

is 66-235320-002-DF. 1 4/ Issued December 19, 2008, the Amended

Permit has an expiration date of December 19, 2013. The

expiration date coincides with the construction phase of five

years on the face of the Amended Permit. See Chbat Ex. 4.

Mr. Sheehey Challenges the Amended Permit

74. On January 6, 2009, Mr. Sheehey, pro se , filed with

DEP a petition (the "Petition") seeking a formal administrative

hearing with regard to "Amended Wetland Resource Permit 66-

00235320-002-DF."

75. Although the Petition makes reference to the Amended

Permit, it seeks in the first instance enforcement of the

Settlement Agreement that relates to the Final Original Permit.

The Petition states: "Petitioner believes that the Florida

Department of Environmental Protection has jurisdiction over

this matter and should enforce the March 20, 2007 Settlement

Agreement which requires that Permittee act in conformance with

Exhibit 'A' of the Agreement [the drawing of the Swale]."

76. In the event that DEP declined to enforce the

Settlement Agreement, the Petition sets out disputed issues of

material fact that relate to issuance of the Amended Permit.

77. The Petition was referred to DOAH on February 19,

2009. One week before the final hearing, the Department filed

the motion in limine that is discussed in the Preliminary

Statement of this Recommended Order. The motion was granted to

the extent that it sought to preclude Sheehey from introducing

evidence that supported enforcement of the Settlement Agreement

since the 2008 Application, which, while bearing similarity to

the 2004 Application, is nonetheless an independent application

that should be approved or denied on its own merits without

regard to the 2004 Application, the Proposed Original Permit,

the Settlement Agreement or the Final Original Permit.

78. The case proceeded to hearing on the remaining issues

raised by the Petition: 1) whether Sheehey has standing to

contest approval of the 2008 Application; 2) whether Chbat gave

the notice required by Section 373.413, Florida Statutes, and

3) whether Chbat's application meets the criteria in statutes

and rules for issuance of the Amended Permit.

Standing

79. The findings of fact relevant to Mr. Sheehey's

standing are found in paragraph 9, above.

Notice

80. Notice of the 2008 Application was published in The

Defuniak Springs Herald-Breeze, a newspaper published in

Defuniak Springs, Walton County, Florida. The notice was

published on October 23, 2008.

81. The evidence presented by Mr. Sheehey concerning lack

of legal notice consisted of testimony by Mr. Sheehey at hearing

in response to questions from his counsel. See Tr. Vol. III at

134.

82. The testimony does not establish that Mr. Sheehey was

a person who had filed a written request for notification of any

pending application affecting his particular area. The

testimony of Mr. Sheehey, moreover, establishes that he was

given oral notice of the application by Mr. O'Donnell within

four days of its filing.

WRP Permitting Criteria

83. To obtain a WRP, an applicant must satisfy the

criteria in Florida Administrative Code Chapter 62-312 and

Section 373.414, Florida Statutes. These criteria govern a

range of topics including water quality.

Water Quality 1 5/

84. Florida Administrative Code Rule 62-312.080 provides

that no permit shall be issued unless the Department has been

supplied with reasonable assurances that the proposed work will

not violate water quality standards.

85. Water that enters the pond spends some amount of time

in the pond (residence time) before flowing out. During

residence time, solids drop out of the water so that the quality

of the stormwater that flows out of the pond is reasonably

expected to be better than the quality of the stormwater runoff

when it entered the pond. Vegetation surrounding the pond,

furthermore, enhances the quality of the water in the pond,

whether the water’s source is runoff or rain falling directly

into the pond.

86. The water that flows out of the pond north of Alden

Lane is “existing discharge.\. Vol. I at 65. It generally

made its way to the Bay prior to the Swale. Some of it makes

its way to the Bay via the Swale now; some of it outside the

Swale as overflow. The culvert extension will convey that

discharge to the Bay if the extension is installed. The quality

of the water is not significantly less when it discharges to the

Bay via the Swale or otherwise from the Chbat property than when

it would enter the culvert extension should it be installed.

87. It is true that the Swale would have provided

filtration and additional treatment to the discharge from the

Eastern Pond Culvert as does the Chbat property in general. But

that does not mean that the quality of the culvert’s discharge

is a concern. The Swale may have been an option preferable to

the extension of the culvert as far as water quality goes but

all parties agree that the Swale has failed as a conveyance

(albeit Mr. Sheehey maintains that the Swale would work with

proper maintenance.) That there is a discharge method that

improves the quality of the discharge, such as a swale, does not

mean that the discharge to the Bay via the culvert extension is

of insufficient quality.

88. None of the parties tested the quality of the

discharge from the Eastern Pond Culvert. The Department,

nonetheless, offered evidence with regard to its quality.

89. The Department concluded that the quality of the pond

and its discharge were not of concern. Had the pond been

contaminated to an extent that would have given rise to

concerns, moreover, the Swale or the culvert extension as a

means of conveying the discharge to the Bay would not have made

a “discernible difference.\. Vol. II at 80.

90. The Department provided evidence of assumptions made

with regard to the quality of the water that led the Department

to conclude that testing of the discharge was unnecessary.

Mr. O’Donnell, the Department’s expert in the application of

state rules and statutes in wetland resource permitting,

detailed the assumptions at hearing:

My assumption was that that pond was dug

some time in the past as a way to provide

fill for roads. That it was never any part

of . . . [a] stormwater treatment system.

And that it conveyed upstream water through

the pond and then on down into

Choctawhatchee Bay. It was strictly a

[borrow pit and a conveyance pond.] It was

never permitted as a treatment system in any

way that I was aware of in my diligence [in

determining whether the extension should be

permitted.]

Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the

record at the behest of Mr. Chbat, the burden shifted to

Mr. Sheehey to prove that the applicant had not provided

reasonable assurance of water quality. Mr. Sheehey did not

offer evidence of any testing of the discharge. Nor did he

offer testimony that rebutted Mr. O’Donnell’s opinion. In fact,

the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported

Mr. O'Donnell's opinion with regard to water quality. See Tr.

Vol. III at 112 .

91. In sum, the Department made assumptions that are found

to be reasonable based on Mr. O’Donnell’s expertise and

experience. Those assumptions were not shown to be unreasonable

by Mr. Sheehey. The Department’s conclusions about water

quality flow directly from Mr. O’Donnell’s reasonable

assumptions.

92. Reasonable assurances have been provided that the

project will not violate water quality standards.

Public Interest Test

93. Choctawhatchee Bay is not designated as an

“outstanding Florida water.” The test that Mr. Chbat must meet

therefore is whether the activity proposed by the permit

application is “not contrary to the public interest.”

§ 373.414, Fla. Stat.

94. In making that determination, the Department is

directed by the statute to consider and balance seven criteria.

See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at

issue once water quality is determined to be of no concern.

95. Two of the three, “[w]hether the activity will be of a

Statutes, and “[t]he current condition and relative value of

functions being performed by areas affected by the proposed

activity,” Section 373.414(1)(a)7., Florida Statutes, do not

require in-depth consideration.

96. With regard to the nature of the project time-wise,

the evidence establishes that the culvert extension is intended

to be permanent.

97. With regard to current condition, the area affected by

the proposed activity is a residential lot, a substantial

portion of which is under water following heavy rain. To

facilitate the conveyance of stormwater, the lot is served by

the Swale. The Swale is not functioning optimally because of

lack of maintenance and because of the Ridge. With regard to

relative value from the standpoint of water quality, the

function being performed by the lot and the Swale is little, at

least as established by this record. While it is certainly true

that the lot with or without the Swale will filtrate and

otherwise treat stormwater runoff from the pond, the difference

in the quality of the stormwater conveyed by the culvert

extension from that which would enter the Bay without the

extension is not significant. See the discussion above of

Mr. O’Donnell’s accepted opinions.

98. Of the seven statutory criteria to be weighed and

balanced by the Department, the one that is central to this case

is found in subparagraph 1., of subsection (1)(a): “[w]hether

the [culvert extension] will adversely affect . . . the property

of others.” The “property of others” in this case is the

property of Mr. Sheehey.

The Project’s Effect on the Property of Mr. Sheehey .

99. For the reasons discussed in paragraphs 63-70, above,

Mr. Chbat has failed to provide reasonable assurances that the

project will not have a detrimental effect on the property of

Mr. Sheehey.

100. The extent of the detrimental effect to Mr. Sheehey's

property is difficult to determine from this record but it is

highly likely based on all the evidence of record that there

will be a detrimental effect: additional flooding in heavy rain

events.

CONCLUSIONS OF LAW

101. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

Standing

102. Mr. Sheehey has standing to contest the issuance of

the Amended Permit.

Notice

103. The notice requirement in Section 373.413, Florida

Statutes, is not applicable in this case.

104. Mr. Sheehey presented no evidence that he was a

person who had filed a written request for notification of any

application in his area pending with DEP. There is no question

that he actively sought notice from DEP about applications with

regard to Lot 9, but it was done by telephone and visits to the

DEP office.

105. During one of those visits, the Department gave

Mr. Sheehey notice of the 2008 Application. Furthermore, notice

was published in a local newspaper. Such notice was not shown

by Mr. Sheehey to be untimely.

Burden of Proof as to the WRP

106. As the applicant for the WRP, Mr. Chbat has the

burden of showing affirmative entitlement to its issuance.

Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778, 789 (Fla. 1st

DCA 1981). In the context of this case, Chbat must provide

reasonable assurances that applicable statutory and rule

conditions support the issuance of the WRP.

107. If Mr. Chbat makes a prima facie case, the burden

shifts to Mr. Sheehey to present evidence of equivalent quality

that reasonable assurances have not been made. See J.W.C. , 396

So. 2d at 789. Mere speculation about what might occur, does

not satisfy Mr. Sheehey's burden of presenting evidence contrary

to Chbat's prima facie case. See , e.g. , Chipola Basin

Protective Group, Inc. v. Dep't of Envtl. Reg. , Case No. 88-3355

(DER Dec. 30, 1988).

108. "Reasonable assurances" means "a substantial

likelihood that the project will be successfully implemented."

See Metro. Dade County v. Coscan Fla., Inc. , 609 So. 2d 644, 648

(Fla. 3d DCA 1992).

109. An applicant must provide reasonable assurances that

take into account contingencies that might reasonably be

expected. But an applicant is not required to eliminate all

contrary possibilities, however remote, or to address impacts

that are only theoretical and not reasonably likely. Hoffert v.

St. Joe Paper Co. , Case Nos. 89-5053 and 89-6381, (DOAH Oct. 26,

2990; DER Dec. 6, 1990); Alafia River Basin Stewardship Council,

Inc. v. S.W. Fla. Water Mgmt. Dist. , Case No. 98-4925 (DOAH July

2, 1999; SWFWMD July 27, 1999).

110. Competent, substantial evidence based on detailed

site plans and engineering studies, coupled with credible expert

engineering testimony, is a sufficient basis for a finding of

reasonable assurances. See Hamilton County Board of County

Commissioners v. Dep't of Envtl. Prot. , 587 So. 2d 1378 (Fla.

1st DCA 1991). But such evidence is subject to rebuttal by

expert engineering testimony based on material differences

between site plans and personally-observed physical reality.

Deference to Agency Interpretation

111. The interpretation of an agency of its own rules and

of statutes the agency is required to implement is entitled to

deference. Such interpretations are not to be disregarded

unless clearly erroneous. Sullivan v. Fla. Dep't of Envtl.

Prot. , 890 So. 2d 417 (Fla. 1st DCA 2004); Bd. Of Podiatric Med.

v. Fla. Med. Ass'n. , 779 So. 2d 658, (Fla. 1st DCA 2001).

Wetland Resource Permit

112. Pursuant to Section 373.414, Florida Statutes, an

applicant for a WRP is required to demonstrate that the proposed

activities will not be harmful to water resources and will

comply with applicable rules. This statutory section is

implemented in DEP's Northwest District through Florida

Administrative Code Chapter 62-312 and, in particular, through

Florida Administrative Code Rule 62-312.080.

113. Chbat and the Department presented competent,

substantial evidence 1 6/ demonstrating reasonable assurance that

the proposed project will comply with the provisions of Florida

Administrative Code Rule 62-312.080(1), that is, that the

project will not violate state water quality standards.

114. Pursuant to Florida Administrative Code Rule 62-

312.080(2) and Section 373.414(1), Florida Statutes, Mr. Chbat

is required to demonstrate reasonable assurances that the

proposed project is not contrary to the public interest based on

a balancing of the seven factors listed in Section

373.414(1)(a), Florida Statutes.

115. Mr. Chbat has failed to show the project is not

contrary to the public interest because of the effect the

project is likely to have on Mr. Sheehey's property.

116. Mr. Sheehey demonstrated through Mr. Porterfield's

testimony that in heavy rains Lot 8 is likely to suffer greater

flooding because of Mr. Chbat's project.

117. Mr. Porterfield's testimony was countered by

Mr. Thomason's testimony. In a case like this, it would not be

unusual to look to the testimony of DEP's storm water engineer

to "break the tie" between testimony given by the stormwater

engineer of the applicant and the stormwater engineer of the

applicant's opponent.

118. In testifying for DEP, Mr. Street was accepted as an

expert in storm water engineering. The credentials that

entitled him to that expertise were beyond challenge both from

the standpoint of his education and his experience. His

demeanor on the stand was forthright. From the substance of his

testimony and his demeanor, he is found to be an expert whose

testimony is credible and whose opinions are entitled to great

weight. But there was a shift in Mr. Street's position between

when he testified in the case-in-chief for the Department, based

on his review of the drawings submitted by Mr. Chbat, and when

he testified on rebuttal after he had heard all of the evidence

in the case. Mr. Street moved from a position of "the Drainage

Easement will protect Mr. Sheehey's property," to "the trench in

the Drainage Easement needs to be re-established and the

easement maintained" in order to protect Mr. Sheehey's property.

119. In the final analysis, Mr. Street's testimony on

rebuttal supports the position of Mr. Sheehey that the mounded

culvert extension will cause build up and impoundment of water

on Lot 8 that would ordinarily move off the lot.

RECOMMENDATION

Based on the foregoing, it is recommended that the

Department of Environmental Protection deny 1 7/ the Amended Permit

for the failure of Mr. Chbat to provide reasonable assurances

that the project will not adversely affect Mr. Sheehey's

property.

DONE AND ENTERED this 14th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January, 2010.

ENDNOTES

1 / Mr. Cummins was not tendered as an expert of any kind. As

would be expected, Mr. Wharton, Chbat's counsel, objected to the

question about water overflow from the pond: "I think that

calls for an opinion. Is it possible to know where the water

spreads. It's not even a question of his personal observation."

Tr. Vol. III at 8. The objection was over-ruled with the

statement from the administrative law judge, "you can ask if the

witness has observed the water and to describe it." Id. The

witness' testimony was based on long-time personal observation.

It is, moreover, of a quality that clears the threshold for the

admission of evidence in an administrative proceeding in which

the substantial interests of a party are determined by an

agency: "Irrelevant, immaterial, or unduly repetitious evidence

shall be excluded, but all other evidence of a type commonly

relied upon by reasonably prudent persons in the conduct of

their affairs shall be admissible, whether or not such evidence

would be admissible in a trial in the courts of Florida ."

§ 120.569(1)(g), Fla. Stat. (emphasis added.) The testimony

from Mr. Cummins demonstrates that his observations and the

inferences he drew from those observations are of a type allowed

to be of record by the Administrative Procedure Act.

Furthermore, the conduct of the witness and his demeanor during

the hearing were such that his testimony was not only accepted

as truthful as far as what the witness had observed, but

supported by experience with regard to the conclusion reached.

That conclusion is that at times of sufficient rain or during

"wet periods," water from the pond flows past or under Alden

Lane onto Mr. Chbat's property toward the bay and then across

Lot 9, the Easement, and Lot's 8, 7, and 6 and in the wettest

time onto Lot 5, the lot owned by Mr. Cummins.

2 / The morning of the second day of hearing, after considerable

rainfall over Walton County experienced by all participants the

day before, the water on Mr. Cummins' lot was at eight inches

above the soil.

3 / Although referred to colloquially by residents as "our

upland," the evidence-of-record establishes that the Ridge is

within DEP's jurisidictional wetlands.

4 / Mr. Street's use of the word "unnatural" to describe the

east-west flow is taken to mean that it is contrary to the

otherwise natural north-to-south flow of water across the

surface of Lot 9, the Easement and Lot 8.

5 / Petitioner's Ex. 7A with 7B and 7C comprise a composite

exhibit: Petitioner's Ex. 7.

6 / The photograph of the pond does little to add to the Findings

of Fact in this order.

7 / The pipe originally proposed by the 2004 Application is

substantially similar to what is referred to in this proceeding

as the extension of the culvert.

8 / Mr. Thomason's testimony with regard to the deposition of

sand at the end of the Swale close to the Bay, see tr. vol. I at

74, e.g., where he refers to it as "deposition of sediment" is

similar to Mr. Street's testimony that one of the natural causes

of the Ridge is deposition of sand. The Swale, moreover,

receives sediment carried by stormwater as well as sand

deposited through tidal influences.

9 / Exhibit Number 1 to the Amended Permit is to be distinguished

from Exhibit Number 2 to the Amended Permit. Exhibit Number 1

is entitled "PIPE EXTENSION PLAN." Exhibit Number 2 is entitled

"MITIGATION PLAN; it continues to show a length of 150 feet.

When the 2008 Application was amended to lengthen the pipe

extension to a 177 feet only a "single revised page was

submitted." Tr. Vol. I at 57. The MITIGATION PLAN was not

revised to show the additional 27 feet because the mitigation

proposed remained the same.

10 / The assumption is at odds with the Department's acceptance

that the Swale did not function as planned. A large part of the

Swale's lack of functionality is due to deposition of sediment

which could be overcome by maintenance. One would expect that

deposition of sand in the Drainage Easement would occur for the

same reasons as it occurs in the Swale, which is borne out by

the evidence in this case.

11/ Mr. Street elaborated on some of the factors that would have

to be considered to conduct such an analysis. See Tr. Vol. II

at 115.

12 / Department personnel did visit the site at some point after

the 2004 Application was filed.

13 / It is not clear from the record why the permit issued in

response to the 2008 Application is denominated as "amended."

Perhaps, an amended permit was issued because of the revision to

the Pipe Extension Plan drawing now attached to the Amended

Permit as Exhibit 1 that added an additional 27 feet to the

extension of the culvert. Or perhaps the permit is denominated

"amended" to communicate that it is an amendment to the permit

issued following the 2004 Application. If so, it is a misnomer.

The 2008 Application drawings of the work, while similar to the

what was permitted by the Proposed Original Permit, is a new

application independent of the 2004 Application, the Proposed

Original Permit and the Final Original Permit.

14 / The permit/authorization Number for the Amended Permit is

one digit different from number assigned to the Original Permit

file.

15 / Water quality, however, is not a real issue to any party in

the case. There have been no “water quality” violations raised

by the Department with regard to the quality of the pond or its

discharge. The record is devoid of any attempt made by any

resident of La Grange Estates, including Mr. Sheehey, to improve

the quality of the discharge from the pond even after residents

noticed the red tinge of the discharge following the county’s

use of red clay to improve the roads in the subdivision. The

project was not designed by Mr. Chbat’s stormwater engineer to

address water quality issues. Mr. Sheehey’s real issue is one

of water quantity: whether the volume of water on his property

will be increased by the installation of the culvert extension.

16 / The evidence which consisted of the testimony of

Mr. Thomason and Mr O'Donnell was competent but thin. It is

regarded as substantial enough, however, to shift the burden to

Mr. Sheehey to show the project's violation of state water

quality standards. Mr. Sheehey failed to carry that burden.

17 / Although the recommendation in this order is to deny the

Amended Permit, the record of this proceeding reveals ways of

reaching an outcome satisfactory to all parties. The

aspirations of the parties in this case are not in conflict.

Mr. Chbat wants to be able to build a residence on his lot and

have the lot be habitable from the stand-point of water on the

lot. Mr. Sheehey does not oppose Mr. Chbat's interest in

building a home on Lot 9. He wants simply to protect his lot

from additional flooding beyond what it experiences now as the

result of the overflow of stormwater from a borrow pit that

should drain to the Bay via the Drainage Easement but does not.

The Department is willing to issue permits sought by Mr. Chbat

so long as the wetlands and the Bay are protected. Likewise,

the Department has no intent to exacerbate the flooding on Mr.

Sheehey's property.

A potential solution is modification of the Amended Permit

following a site visit by DEP's stormwater engineer. During

such a visit, Mr. Street should double-check his determination

that a culvert extension of 177 feet in length will allow

outfall bayward of the Ridge. He should determine whether the

"trench" in the Drainage Easement can be re-established. The

Department should consider whether and to what to what extent

the Drainage Easement can be maintained. (Presumably an

association of which both Mr. Chbat and Mr. Sheehey are members

is the owner of the Drainage Easement.) Furthermore, the

Department should consider allowing cuts in the Ridge at

appropriate places to facilitate drainage from Lots 8 and 9 and

the Drainage Easement so long as drainage through the cuts will

not damage jurisdictional wetlands or the Bay.

COPIES FURNISHED :

Frederick L. Aschauer, Jr., Esquire

Rose, Sundstrom & Bentley, LLP

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

Amanda Gayle Bush, Esquire

Department of Environmental Protection

Office of the General Counsel

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

David Michael Chesser, Esquire

Chesser & Barr, P.A.

1201 Eglin Parkway

Shalimar, Florida 32579

Thomas L. Sheehey

87 Alden Lane

Freeport, Florida 32439

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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.