20-000091 Paul Still vs. Suwannee River Water Management District And Bradford County, Florida, Status: Closed Recommended Order on Thursday, November 19, 2020.

Summary: Bradford County was entitled to an exemption for road repair to repair storm damaged S.W. 101st Avenue.

For Respondent Bradford County, Florida :

William Edward Sexton , County Attorney

Bradford County, Florida

945 North Temple Avenue

Post Office Drawer B

Starke , Florida 32 091

S TATEMENT OF T HE I SSUE

The issue to be determined is whether Bradford County meets the criteria

listed in Florida Administrative Code Rule 62 - 330.051(4) (e) for a road repair

exemption.

P RELIMINARY S TATEMENT

On December 10, 2019, the Suwannee River Water Management District

(“District”) entered a notice in Environmental Resource Permit (ERP):

Exemption, ERP - 007 - 233697 - 2 (“Exemption”), by which it determined that

activities related to the repair of S outhwest 101st Avenue in Bradford

County, Florida (“ 101st Avenue ” or the “road” ) met the criteria to be an

exempt activity pursuant to r ule 62 - 330.051(4)(e) .

On or about December 23, 2019, Paul Still (“Petitioner” or “Dr. Still”) filed

a Petition Requesting an Administrative Hearing Review (“Petition”)

challenging the Exemption , which was refer r ed to DOAH and assigned as

DOAH Case No. 20 - 0091.

On January 13, 2020, the District filed a Motion to Amend Case Caption

to Include Exemption Applicant, Bradford County, Florida, as a Party , and

Bradford County, Florida (“County”) was , thereafter , added as a Respondent.

The final hearing was initially set to be heard on March 23, 2020, in Live

Oak, Florid a. Upon motion, the hearing was continued and rescheduled for

June 17 and 18, 2020 , in Live Oak. A telephonic status conference was held

on May 19, 2020, to discuss both the hearing date and the means by which

the hearing would be conducted. On May 21, 202 0, the parties jointly

requested that the hearing be rescheduled for September 10 and 11, 2020 , at

the District offices in Live Oak, and it was so scheduled. On July 21, 2020, in

light of the continuing Covid - 19 outbreak, and due to a scheduled travel -

limiting medical procedure involving the undersigned, the hearing was

rescheduled to be held on September 10 and 11, 2020 , by Zoom conference.

On September 4, 2020, the parties filed their Joint Pre - hearing

Stipulation (“JPS”) . The J PS contained nine stipulations of fact , each of

which are adopted and incorporated herein . The JPS also identified disputed

issues of fact and law remaining for disposition .

On September 4, 2020, the County also filed a Motion in Limine objecting

to consideration of whether the work performed by the County qualified for

an exemption under rule 62 - 330.051(4)(b) for the maintenance and operation

of culverted roadway crossings . Dr. Still filed a response which included a

copy of the County’s July 2, 2019 , Request for Verification of an Exemption ,

and based thereon, the motion was denied, subject to a determination that

the area at issue is a “wholly artificial, non - navigable drainage conveyance.”

T he final hearing was convened on September 10, 2020 , as scheduled.

At the com mencement of the final hearing, the issue of whether an

exemption for “[c] onstruction, alteration, or maintenance, and operation, of

culverted roadway crossing [ ]” pursuant to rule 62 - 330.051(4)(b) was

sought by the County or granted by the District was taken up again. It was

determined from the stipulated Exemption application that , on December 3,

2019, the Exemption request was modified to eliminate the request for

verification of the culverted roadway crossing, and the Count y was

proceeding solely on its application for the road repair exemption in rule

62 - 330.051(4)(e). That substituted application was the basis for the District’ s

notice of the Exemption. The O rder denying the Motion in Limine was

reconsidered in light o f the additional evidence and granted on the record.

Therefore, the hearing proceeded solely on the issue of whether the C ounty

met t he standards for a road repair exemption under rule 62 - 330.051(4)(e).

The Exemption was approved under the authority of chapter 403 , Florida

Statutes . Therefore, the modified burden of proof established in

section 120.569(2)(p) , Florida Statutes , is applicable . Thus, upon the County

and the District entering the complete application files and supporting

documentation and t he District’s notice of the Exemption into evidence , the

prima facie case of entitlement for the Exemption was met. Therefore , the

burden of ultimate persuasion is on Petitioner to prove his case in opposition

to the Exemption by a preponderance of the com petent and substantial

evidence and , thereby , prove that the County failed to provide reasonable

assurance that the standards for issuance of the Exemption were met.

At the final hearing , by agreement of the parties, the witnesses were

presented as joint witnesses, with all parties having the opportunity to elicit

direct testimony and cross - examination of each witness. The following

witnesses were presented: Patrick Welch, R.P.S., who was accepted as an

expert in land surveying; Chad Ris char, P.W.S., who was accepted as an

expert in wetland science ; Jorge Morales, P.E., who was accepted as an

expert in civil engineering; Mary Diaz, P.E., who was accepted as an expert

in agricultural and biological engineering, environmental resource permi tting

(“ERP”), and rule - based exemptions to ERP; Leroy Marshall , II, P.E., who

was accepted as an expert in civil engineering, ERP, and rule - based

exemptions to ERP ; and Christina Carr, P.W.S., who was accepted as an

expert in environmental science, ERP, rule - based exemptions to ERP , and

soil and water science . Dr. Still testified on his own behalf. District Exhibits 1

through 3 , County Exhibits 3 through 6 , and Petitioner’s Exhibits 1 through

3, 5 through 8, and 10 through 12 were received in evidence.

A two - volume Transcript of the final hearing was filed on October 7 , 2020 .

The parties requested 20 days from the filing of the Transcript to file their

post - hearing submittals. On October 22, 2020, the County moved for an

extension of time to file proposed recommended orders (“PRO”). The motion

was granted, and the date for filing was extended to November 3, 2020. On October 2 8 , 2020, the District moved for an extension of time t o file PROs .

The motion was granted, and the date for filing was extended to November 9 ,

2020. Dr. Still and the District filed their PROs by 5:00 p.m. on November 9,

2020 . The County ’s PRO was received by DOAH through the e - filing system

at 5:09 p.m. on N ovember 9, 2020, and it was , therefore , entered on the

docket as being filed on November 10, 2020 , in accordance with Florida

Administrative Code Rule 28 - 106.104(3) . Nonetheless, each of the PROs has

been considered in the preparation of this Recommended O rder .

On September 3, 2020, the County filed a Motion for Attorney’s Fees and

Costs P ursuant to S ection 120.5 95, Florida Statutes, Against Petitioner, Paul

Still. Mr. Still filed a response on October 6, 2020. The motion is addressed at

the conclus ion of this Recommended Order.

The law in effect at the time the District takes final agency action on the

application being operative, references to statutes are to their current

versions , unless otherwise noted . Lavernia v. Dep’t of Prof’l Reg. , 616 So. 2d

53 (Fla. 1st DCA 1993).

F INDINGS O F F ACT

Based upon the demeanor and credibility of the witnesses , the

stipulations of the parties, and the evidentiary record of this proceeding, the

following Findings of Fact are made:

The Parties

1 . Dr. Still resides at 14167 S outhwest 101st Ave nue, Starke, F lorida.

That property abuts work that was performed pursuant to the Exemption.

2 . The District is a water management district created by section

373.069(1) , Florida Statutes . It has the responsibility to conserve, protect,

manage, and control the water resources within its geographic boundaries.

See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of

Environmental Protection, is authorized to administe r and enforce c hapter

373, and rules promulgated thereunder in c hapter 62 - 330 , regarding

activities in surface waters of the state. The District is the permitting

authority in this proceeding and issued the Exemption to the C o unty .

3. The County is a political subdivision of the State of Florida . The County

is responsible for keeping county roads and structures within its boundary in

good repair and for establishing the width and grade of such roads and

structures . §§ 334.03(8) and 336.02(1)(a), Fla. Stat.

4. 101st Avenue , a dirt road, was constructed decades ago and runs in a

general north/south direction for several miles. It was in existence , publicly

used, and under C ounty maintenanc e long before January 1, 2002 . Dr. Still

acknowledged that when he purchased his property in 19 96 , the road was

publicly used and was being maintained by the County.

5 . The centerline of 101st Avenue has existed in its current position as

long as Mr. Welch , the Bradford County surveyor, has been familiar with the

proper ty, since at least 1996. The County owns and is allowed to use a 60 - foot

right - of - way (“ROW”) extending 30 feet to either side of the centerline. The

driving surface of 101st Avenue has consistently been from 20 to 22 feet in

width, with drainage structures extending further into the ROW.

6 . The evidence was convincing that 101st Avenue was regularly

maintained or repaired by the County for more than s even years prior to the

Exemption . The evidence was equally convincing that , during that period , the

width of the road that actually has been maintained or repaired is substantially -- if not identically -- the same as the width of 101st Avenue

after the r oad repairs under the Exemption were completed.

7 . 101st Avenue was , prior to the exempt road repair work, “very wet”

during rainy periods, and cars and trucks would routinely get stuck in the

mud . Mr. Welch testified credibly that 101st Avenue was “a mess ” even

before the events that led to the work covered by the Exemption.

8 . It is reasonable to conclude that the driving surface of 101st Avenue

may have shifted by a matter of feet in either direction over the years prior to

the exempt road repairs , which would have generally been the result of

persons driving off of the driving surface to escape impassable areas, and of

the imprecision inherent in grading a dirt road with a large motor grader.

The evidence established that the County has maintain ed 101st Avenue at a

location as close to the established centerline as possible, and has not

intentionally moved or realigned 101st Avenue from its historic location.

9 . Mr. Welch was very familiar with 101st Avenue, having used it

numerous times, including during the period leading up to the events that precipitated the road repair work at issue. He testified to two surveys he performed of the area, first in 1996, and aga in in the vicinity of the Still

property in May 2017. He testified that 101st Avenue was under C ounty

ownership and maintenance prior to h is first survey in 1996.

10 . Photographic evidence offered by Dr. Still showed 101st Avenue to be

significantly degra ded near his property for several years leading up to 201 7 .

Turbidity of the waters passing alongside and under 101st Avenue was “ a

long ongoing issue with this road , ” dating back to at least 2015 .

11 . 101st Avenue “was in pretty poor shape” in January 2017. Cars would

routinely go around wet areas on the driving surface and possibly onto

Dr. Still’s property. That gave the appearance of a change in the eastern

ROW. Over a period of years prior to the Exemption work, the ROW may

have crept eastward as the road was grade d , ditches were maintained , and

residential traffic diverted around impassable areas . The shift could have

been as much as 10 to 15 feet , but the evidence establishing such was n either

pr ecise n or compelling . However, even if the ROW shifted over time, the

movement was not the result of intentional operation and maintenance by

C ounty staff , but was a gradual, unintentional movement over time. Such a

gradual shift is common with dirt and limerock roads. Furthermore, the

alignment of the travel surface was stable, and was always within the 60 - foot

ROW, although the stormwater structures may have gone beyond the ROW.

1 2 . In August 201 7 , a series of storm events caused 101st Avenue to be

flooded . Dr. Still testified that the existing road and ditches and most of the

areas adjacent to his property were “destroyed” by continu ed public use after

the August 2017 rain event. He believed there was no way to ascertain the

alignment of 101st Avenue.

1 3 . Around September 10 , 201 7 , Hurricane Irma impacted the County,

causing substantial flooding and damaging numerous dirt and limerock roads

in th e County , including 101st Avenue . 101st Avenue was partially damaged

from flooded conditions , and rendered completely impassable at places along

its path , which led motorists to drive off of the established roadway onto

adjacent properties to get through. The diversion of traffic off of the road

surface wa s due to the personal decisions of the public using the road, and

was not the result of any direction, operation , or maintenance by County

staff.

1 4 A fter Hurricane Irma , G overnor Scott issued emergency orders that

allowed local governments to undertake necessary repairs to roadways. The

County issued similar emergency orders. 1

1 5 . In November 2017, Mr. Welch performed a survey to establish the

alignment of the road. 101st Avenue was partially repaired consistent with

the survey and pursuant to the emerg ency orders , with the work beginning in

December 2017.

1 6 . As the work to repair 101st Avenue was proceeding, Dr. Still asserted

that the ROW encroached onto his property. He and Mr. Welch walked the

property line , noted that the ROW appeared to extend across a fence installed

on the west side of 101st Avenue, and staked t he disputed area. Though the

County believed it was working within its ROW, it decided, more as a matter of convenience to avoid the time and expense of litigation , to purchase the

dis puted area. Thereafter, on January 5, 2018, the County purchased 1.78

acres of property from Dr. Still, which was incorporated into the County

ROW.

2 The purchase of the property , and establishment of the undisputed

ROW, was completed well before the Decemb er 23, 2019, filing of the

Petition.

1 7 . The travel surface of the road remained within the prescriptive and

historical ROW. The “footprint” of 101st Avenue was the same before and

after the road repair work. Dr. Still admitted that the road had not

“physically moved.” However, he believes th at the County’s use of the

1 Since the Exemption work was largely (and lawfully) performed under the emergency orders, the

County’s Exemption application was filed after the repair work had begun on 101st Avenue, and is

considered an after - the - fact application. The application for the Exemption was originally filed pursuant to

r ules 62 - 330.051 ( 4) (b) and (e). The County thereafter withdrew its request for an exemption pursuant to

rule 62 - 330.051 (4) (b), and limited its Exemption to r ule 62 - 330.051(4)(e), which establishes the standards

at issue in this proceeding. The District’s December 10, 2019, proposed agency action granted the

Exemption for resurfacing the entirety of the length of 101st Avenue.

2 The evidence was not sufficient to establish that the ROW actually encroached onto Dr. Still’s property. It

is equally plausible that the fence enc roached into the 101st Avenue ROW. Nonetheless, the issue was -- or

should have been -- resolved when the County agreed to pay Dr. Still to extinguish any plausible claim to

the property in dispute.

1.78 acres of purchased property for the ROW con stitutes a realignment of

101st Avenue.

1 8 . From an engineering perspective, as long as a road surface is within

an established ROW, and there has been no intentional change in its

direction or trajectory, the road is not “realigned.” The evidence established

that 101st Avenue remained within its established ROW, and there was no

intentional change in its direction or trajectory from the repair work.

19 . The work performed under the exemption involved grading 101st

Avenue along its entire length, and applying asphalt millings and a sealant

to stabilize the travel surface. The asphalt millings placed on the 101st

Avenue travel surface were applied on top of the “as - is” existing limerock .

The millings provided structure and stability to the travel lanes, and

eliminated erosion and the large muddy bogs that were a feature of the road

during the rainy season and after storms. There was no persuasive evidence

that the millings materially raised the height of the road travel surface.

2 0 . Mr. Risc har testified that 101st Avenue, after th e road repair work, is

now in good condition and intact. The asphalt millings are not “loose” but are

bound together. The work stabilized the roadbed, provided structural

integrity, and improved water quality as compared to a simple graded road.

His testim ony is accepted.

21 . Dr. Still produced several photographs depicting a small pile of dirt

near a roadside ditch near the drainage culvert under 101st Avenue. The pile

pre - dated the Exemption work. Ms. Diaz testified that the mounds ha d been

“taken care of ,” and they do not appear in any post - Exemption photographs.

There was no evidence of any excavated material having been deposited at or near the Still property from the exempt road repair work.

2 2 . As part of the Exemption work, drainage structures were i ncorporated

to receive and convey stormwater from the road surface. Rule 62 -

330.051(4)(e)5. requires that work performed under a road repair exemption

incorporate “[r] oadside swales or other effective means of stormwater

treatment .”

2 3 . The evidence was not sufficient to demonstrate that the stormwater

structures incorporated along 101st Avenue met the stringent criteria for

“swales” as set forth in the Applicant’s Handbook, Volume II, §§ 5.5.1 and

5.5.2 . However, the testimony was convin cing that the drainage work

incorporated into the road repairs was an “ other effective means of

stormwater treatment. ” Dr. Still’s testimony as a “citizen scientist” was not

sufficient to overcome the expert testimony offered by the County and the

District .

2 4 . During the initial phases of the work, when the County was acting

under the post - Irma emergency orders, the County had not installed silt

fences. Dr. Still complained to the C ounty, and silt fences and turbidity

curtains were installed. Dr. Still ad mitted that the y “ functioned fairly well.”

The silt fences and turbidity curtains were installed prior to the

December 23, 2019, filing of the Petition.

2 5 . The t urbidity curtains and silt screens met best management practices

(“BMPs”) . BMPs are generally construction - related practices, and are not

designed for the “operation” of a facility after conditions have stabilized.

Compliance with BMPs is intended to demonstrate compliance with water quality standards. Ms. Carr directed the County to remove the turbidity

control curtains prior to her last inspection since the area had stabilized.

2 6 . While photographic evidence depicted differences in the appearance of

water in the roadside ditches from that flowing und er the road from forested

areas to the west, the photographs were not sufficient to establish violations

of state water quality standards for turbidity. A turbidity violation is, by

definition, a reading of 2 9 Nephelometric Turbidity Units ( NTUs ) over

back ground as measured by a meter. Fla. Admin. Code R. 62 - 302.530 (69).

Ms. Carr testified credibly that one cannot gauge water quality from a picture, and that the photographs she took on her December 20, 2018 , site

visit did not depict the conditions “in rea l life.” District employees who visited

the area , including Ms. Carr , saw nothing that raised water quality concerns.

The appearance of the water in photographs is not sufficient to demonstrate

that the County failed to control turbidity, sedimentation, and erosion during

and after construction to prevent violations of state water quality standards

due to construction - related activities.

2 7 . Dr. Still was critical of the District inspectors for failing to take

turbidity samples using calibrated meters. Ho wever, he did not take such

samples himself, and was not able to offer proof of any violation of water

quality standards due to the exempt road repairs.

2 8 . Rule 62 - 330.050(9)(b)5., read in conjunction with rule 62 -

330.051(4)(e)8., provides that the “const ruction, alteration, and operation” of

exempt road repair work shall not “[c]ause or contribute to a violation of state water quality standards,” and that “[t]urbidity, sedimentation, and erosion

shall be controlled during and after construction to prevent violations of state

water quality standards.” The rules establish that the standards and

conditions apply to the exempt work being performed , and not to conditions

in the area that may have existed prior to the exempt work.

29 . The issue of turbidity, though discussed at length during the hearing,

was resolved conclusively when Dr. Still admitted that turbidity was not

made worse by the road repairs. Furthermore, a preponderance of the

evidence established that the structure and stability provided to the travel

lanes improved the turbidity and sedimentation that pre - dated the road

repair , and reduced erosion of the road , not only by the repair of the road

itself, but by eliminating the need to drive off of the road surface to avoi d and

bypass impassable areas.

3 0 . The Exemption work included the replacement of a culvert under

101st Avenue. At some time between January 8, 2018 , and January 19, 2018,

a n existing 30 - inch culvert was removed and replaced with two 24 - inch

culverts. Dr. Still complained that the 24 - inch culverts were resulting in

flooding of his property. Therefore, on or about December 17, 2019, prior to

the December 23, 2019, filing of the Petition, the 24 - inch culverts were

removed, and a 30 - inch culvert was instal led to match the size and capacity

of the previously existing culvert , and return the area to its pre - existing

condition .

3 1 . There was no evidence that the current 30 - inch culvert has resulted in

any flooding. Since the 30 - inch culvert reestablished the pre - Exemption

condition, a strong inference is drawn that the exempt work will not “ cause

adverse water quantity or flooding impacts to receiving water and adjacent lands . ” Rather, the evidence establishes that water quantity impacts, if any,

were in existence prior to the exempt road repairs.

3

3 2 . The work was not related to the alteration or maintenance of a

“ culverted roadway crossing ,” despite the culvert work. Thus, the previous

inclusion of rule 62 - 330.051(4)(b) as a basis for the County’s Ex emption

request was withdrawn. The District accepted that withdrawal, and its notice of Exemption did not include any reference to the culvert. As indicated in the

Preliminary Statement and the amended disposition of the Motion in Limine, the road repair E xemption does not explicitly address culvert replacement.

Therefore, any allegation that the replacement of the culvert was a violation of District permitting standards must be taken up with the District as an

exercise of its enforcement discretion, and is not an issue in this proceeding.

3 3 . Dr. Still produced photographs that were described as depicting

“ s ediment” that was deposited along a “canal” on his property between 101st

Avenue and a cleared utility easement. To the extent the photographs

depicted sediment as described, which was not visually apparent, the y were

not sufficient to prove when any such sediment was deposited, or whether the

sedi ment was related to the road repairs performed under the Exemption.

3 Again, simplistically, work performed under the road re pair exemption is not designed to

make pre - existing water quality and water quantity issues better, it just cannot make th ose

conditions worse.

3 4 . Mr. Rischar testified convincingly that there was no scientific data to

support a determination that there are water quality issues, including

turbidity, at the roadway.

3 5 . Dr. Stil l produced photographs of the post - Exemption condition of

101st Avenue with several comparatively tiny depressions that, if never

maintained, would presumably develop into potholes. Despite the nascent

depressions, the road appeared to be vastly improved f rom its condition prior

to the repairs, as evidenced by Dr. Still’s pre - Irma photographs. Mr. Rischar

testified credibly that any roadway, from the least developed dirt road to the most highly developed interstate highway can, and does, develop holes in th e

travel surface over time. For that reason, governmental bodies, including the

County, maintain roads, including 101st Avenue. The photographs provide no

support for a finding that the exempt road repairs have resulted in any

violation of a standard in ei ther rule 62 - 330.051(4)(e)8. or rule 62 -

330.050(9)(b)5.

36 . The evidence established that 101st Avenue was regularly maintained

and repaired by the County for more than seven years prior to the

Exemption , and that the road repairs did not realign , expand the number of

traffic lanes , or alter the width of the existing road .

37 . The evidence established that the work performed under the

Exemption did not realign 101st Avenue. The repairs to 101st Avenue

included work reasonably necessary to repair a nd stabilize the road using

generally accepted roadway design standards .

38 . The evidence demonstrates that no excavated material related to the

work under the Exemption was placed at or near Dr. Still’s property or, for that matter, anywhere along 101st A venue.

3 9 . The evidence established that the repairs to 101st Avenue did not

a dversely impound or obstruct existing water flow, cause adverse impacts to

existing surface water storage and conveyance capabilities, or otherwise

cause adverse water quantity or flooding impacts to receiving water s and

adjacent lands .

40 . The evidence was not sufficient to establish that the road repair work

ca use d or contribute d to a violation of state water quality standards.

Ultimate Findings of Fact

41 . The greater weight of the competent substantial evidence establishes

that 101st Avenue was in existence long before January 1, 2002 , has been

publicly used since that time, and has been regularly maintained and

repaired by the County for more than seven years prior to the Exemption .

Evidence to the contrary was not persuasive.

42 . The greater weight of the competent substantial evidence establishes

that d uring its relevant period of existence, the width of 101st Avenue that

actually has been maintained or repaired is substantially -- if not identically -

- the same as the width of 101st Avenue after the road repairs under the

Exemption were completed. T he work performed under the Exemption did

not realign or expan d the number of traffic lanes of 101st Avenue. The

repairs to 101st Avenue included work reasonably necessary to repair and

stabilize the road using generally accepted roadway design standards.

Evidence to the contrary was not persuasive.

4 3 . The greater w eight of the competent substantial evidence establishes

that no excavated material related to the work under the Exemption was

placed at or near Dr. Still’s property or, for that matter, anywhere along

101st Avenue. Evidence to the contrary was not persuas ive.

4 4 . The greater weight of the competent substantial evidence establishes

that the repairs to 101st Avenue did not adversely impound or obstruct

existing water flow, cause adverse impacts to existing surface water storage and conveyance capabilities, o r otherwise cause adverse water quantity or

flooding impacts to receiving waters and adjacent lands. Evidence to the

contrary was not persuasive.

4 5 . The greater weight of the competent substantial evidence establishes

that the road repair work incorporated effective means of stormwater

treatment , and did not cause or contribute to a violation of state water

quality standards. Evidence to the contrary was not persuasive.

4 6 . The greater weight of the competent substantial evidence establishes

tha t t urbidity, sedimentation, and erosion were controlled during and after

construction , and continue to be controlled, to prevent violations of state

water quality standards . Erosion and sediment control BMPs were installed

and maintained in accordance with applicable guidelines and specifications.

Evidence to the contrary was not persuasive.

C ONCLUSIONS OF L AW

Jurisdiction

4 7 . The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, F la. Stat.

Standing

48 . Section 120.52(13) defines a “party , ” in pertinent part, as a person

“ whose substantial interests will be affected by proposed agency action, and

who makes an appearance as a party.” Section 120.569(1) provides, in

pertinent part, that “[t]he provisions of this section apply in all proceedings

in which the substantial interests of a party are determined by an agency.”

49 . Standing under chapter 120 is guided by the two - pronged test

established in the sem inal case of Agrico Chemical Corporation v.

Department of Environmental Regulation , 406 So. 2d 478 (Fla. 2d DCA 1981).

In that case, the court held that:

We believe that before one can be considered to

have a substantial interest in the outcome of the proc eeding, he must show 1) that he will suffer an

injury in fact which is of sufficient immediacy to

entitle him to a section 120.57 hearing and 2) that

his substantial injury is of a type or nature which the proceeding is designed to protect. The first

aspec t of the test deals with the degree of injury.

The second deals with the nature of the injury.

Id. at 482; see also St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt.

Dist. , 54 So. 3d 1051 (Fla. 5th DCA 2011); Palm Beach Cty. Envtl. Coal. v.

Fla. Dep ’ t of Envtl. Prot. , 14 So. 3d 1076 (Fla. 4th DCA 2009); Mid -

Chattahoochee River Users v. Fla. Dep ’ t of Envtl. Prot. , 948 So. 2d 794, 797

(Fla. 1st DCA 2006).

50 . Dr. Still alleged standing based on the im pact that the road repair had

on his property . The allegations of turbid runoff and sediment entering onto

his property, as well as flooding of his property , meet the second prong of the

Agrico test . T his proceeding is designed to protect adjacent property owners

from potential pollution, water quali ty and quantity violations, and other

adverse impacts caused by the road repairs , impacts that are the subject of

chapter 403 and rule 62 - 330.051 adopted thereunder.

51 . The question for determination as to the first prong of the Agrico test

is whether Dr. Still alleged injuries in fact of sufficient immediacy as to

entitle him to a section 120.57 hearing. “[T] he injury - in - fact standard is met

by a showing that the petitioner has sustained actual or immediate

threatened injury at the time the petition was f iled, and ‘[t]he injury or

threat of injury must be both real and immediate, not conjectural or

hypothetical.’” S. Broward Hosp. Dist. v. Ag. for Health Care Admin. , 141 So.

3d 678, 683 (Fla. 1st DCA 2014)(citing Vill. Park Mobile Home Ass ’ n v. Dep ’ t

of Bu s. Reg. , 506 So. 2d 426, 433 (Fla. 1st DCA 1987)).

52 . Dr. Still all eged , inter alia, that the activities caused turbid runoff and

sediment to enter onto his property, as well as flooding of his property , which

is sufficient to meet the standard of an “inj ury in fact which is of sufficient

immediacy to entitle [him] to a section 120.57 hearing.”

53 . Bradford County has standing as the applicant for the Exemption .

Ft. Myers Real Estate Holdings, LLC v. Dep ’ t of Bus. & Prof ’ l Reg. , 53 So. 3d

1158, 1162 (Fla. 1st DCA 2011); Maverick Media Group v. Dep’t of Transp. ,

791 So . 2d 491, 492 (Fla. 1st DCA 2001) .

Nature of the Proceeding

54 . This is a de novo proceeding, intended to formulate final agency action

and not to review action taken earlier and preliminarily . § 120.57(1)(k),

Fla. Stat; Young v. Dep’t of Cmty. Aff. , 625 So. 2d 831, 833 (Fla. 1993);

Hamilton Cty. Bd. of Cty. Comm ’ rs v. Dep ’ t of Envtl. Reg. , 587 So. 2d 1378,

1387 (Fla. 1st DCA 1991) ; McDonald v. Dep’t of Banking & Fin. , 346 So. 2d

569, 584 (Fla. 1st DCA 1977).

B urden and Standard of Proof

55 . Section 120.569(2)(p) provides that:

For any proceeding arising under chapter 373,

chapter 378, or chapter 403, if a nonapplicant

petitions as a third party to challenge an agency's

issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the

license, permit, or conceptual approval, followed by

the agency. This demonstration may be made by

entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency ’ s staff report or notice

of intent to approve the permit, license, or conceptual ap proval. Subsequent to the presentation of the applicant ’ s prima facie case and

any direct evidence submitted by the agency, the

petitioner initiating the action challenging the

issuance of the permit, license, or conceptual approval has the burden of ultim ate persuasion

and has the burden of going forward to prove the case in opposition to the license, permit, or

conceptual approval through the presentation of

competent and substantial evidence.

56 . The Exemption required notice to the District pursuant t o rule

62 - 330.051(4)(e)7. and section 4.2.1 of the Applicant’s Handbook , Volume I.

Review by the District and a notice of agency action w ere required pursuant

to sections 5.2 and 5.4 of the Applicant’s Handbook , Volume I . The Exemption

m eets the definition of a license in section 120.52(10) because it is an

authorization required by law. The Exemption verification was issued

pursuant to rules promulgated under chapter 403. Therefore, the Exemption

is subject to the abbreviated presentatio n and burden - shifting described in

section 120.569(2)(p). Spinrad v. Guerrero and Dep’t of Envtl. Prot. , Case

No. 13 - 2254, RO ¶ 116 ( Fla. DOAH July 25, 2014; Fla. DEP Sept. 8, 2014);

Pirtle v. Voss and Dep’t of Envtl. Prot. , Case No. 13 - 0515, RO ¶ 30 ( Fla.

DOAH Sept. 27, 2013, Fla. DEP Dec. 26, 2013).

57 . The County and the District made the prima facie case of entitlement

to the Exemption by entering into evidence the application file and

supporting documentation and the District’s notice of Exemption . In addition,

they presented the testimony of expert witnesses in support of the road repair

Exemption.

58 . With the County having made its prima facie case for the E xemption ,

the burden of ultimate persuasion was on Dr. Still to prove his case in

opposi tion to the E xemption b y a preponderance of the competent and

substantial evidence, and thereby prove that the County failed to provide reasonable assurance that the standards for issuance of the E xemption were

met.

59 . The standard of proof is by a prepon derance of the evidence.

§ 120.57(1)(j), Fla. Stat.

60 . “ Surmise, conjecture or speculation have been held not to be

substantial evidence . ” Dep ’ t of High . Saf . & Motor Veh . v. Trimble , 821 So. 2d

1084, 1087 (Fla. 1st DCA 2002) ( citing Fla. Rate Conf . v. Fla. R.R. & Pub.

Utils. Comm ’ n , 108 So. 2d 601, 607 (Fla. 1959)).

Reasonable Assurance

61 . Approval of the Exemption i s dependent upon there being reasonable

assurance that the activities authorized will meet applicable standards.

62 . Reasonable assurance means “a substantial likelihood that the project

will be successfully implemented.” Metro. Dade Cty . v. Coscan Fla., Inc. ,

609 So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable assurance does not

require absolute guarantees that the app licable conditions for issuance of a

permit have been satisfied. Furthermore, speculation or subjective beliefs are

not sufficient to carry the burden of presenting contrary evidence or proving a

lack of reasonable assurance necessary to demonstrate that a permit should

not be issued. FINR II, Inc. v. CF Indus . , Inc. , Case No. 11 - 6495 ( Fla. DOAH

Apr. 30, 2012; Fla. DEP June 8, 2012).

Sta ndards

63 . Rule 62 - 330.051 provides that:

(4) Bridges, Driveways, and Roadways –

(e) Repair, stabilization, paving, or repaving of

existing roads, and the repair or replacement of

vehicular bridges that are part of the road, where:

1. They were in existence on or before January 1,

2002, and have:

a. Been publicly - used and under county or

municipal ownership and maintenan ce thereafter,

including when they have been presumed to be

dedicated in accordance with section 95.361, F.S.;

b. Subsequently become county or municipally -

owned and maintained; or

c. Subsequently become perpetually maintained

by the county or municipali ty through such means

as being accepted by the county or municipality as

part of a Municipal Service Taxing Unit or

Municipal Service Benefit Unit; and

2. The work does not realign the road or expand the

number of traffic lanes of the existing road, but

m ay include safety shoulders, clearing vegetation,

and other work reasonably necessary to repair, stabilize, pave, or repave the road, provided that the work is constructed using generally accepted

roadway design standards;

* * *

8. All work is conducted in compliance with

subsection 62 - 330.050(9), F.A.C.

[ 4 ]

64 . Rule 62 - 330.050(9)(b) provides , in pertinent part, that:

(9) The following apply when specified in an exemption in rule 62 - 330.051, F.A.C.:

(b) Construction, alteration, and operation shall

not:

1. Adversely impound or obstruct existing water

flow, cause adverse impacts to existing surface water storage and conveyance capabilities, or otherwise cause adverse water quantity or flooding

impacts to receiving water and adjacent lands;

* * *

5. Cause or contribute to a violation of state

water quality standards. Turbidity, sedimentation,

and erosion shall be controlled during and after

construction to prevent violations of state water

quality standards, … due to construction - related

activities . Erosion and sediment control best

4 As stipulated by the parties, rule 62 - 330.051(4)(e) 3., 4., and 6. are not at issue. In addition,

although a notice of intent to use the Exemption was not provided to the District 30 days

before performing the work, that requirement was resolved through a variance that was

granted, published, and became final. Thus, rule 62 - 330.051(4) (e)7. i s not at issue.

management practices shall be installed and

maintained in accordance with the guidelines and specifications described in the State of Florida

Erosion and Sediment Control Designer and

Reviewer Manual (Florida Department of Transportation and Florida Department of Environmental Protection, June 2007), , and the

Florida Stormwater Erosion and Sedimentation Control Inspector’s Manual (Florida Department of Environmental Protection, Nonpoint Source Management Section, Tallah assee, Florida, July

2008), … ; nor

6. Allow excavated or dredged material to be

placed in a location other than a self - contained

upland disposal site, except as expressly allowed in an exemption in rule 62 - 330.051, F.A.C.

[ 5 ]

65 . Section 95.361(2) , Florid a Statutes, provides, in pertinent part, that:

In those instances where a road has been constructed by a nongovernmental entity, or where

the road was not constructed by the entity

currently maintaining or repairing it, or where it cannot be determined who constructed the road,

and when such road has been regularly maintained or repaired for the immediate past 7 years by a

county , … such road shall be deemed to be

dedicated to the public to the extent of the width

that actually has been maintained or repair ed for

the prescribed period, whether or not the road has

been formally established as a public highway. …

The dedication shall vest all rights, title, easement,

and appurtenances in and to the road in:

(a) The county, if it is a county road; ... whether or

not there is a record of conveyance, dedication, or

appropriation to the public use.

5 Rule 62 - 330.050(9)(a) and (c) are not applicable. R ule 62 - 330.050(9)(b)2. through 4. are not

applicable, which was not disputed.

Entitlement t o t he Exemption

66 . The use of the disjunctive “or” after rule 62 - 330.051(4)(e)1.b. means

that, in order to meet the Exemption criteria, the road must have been in

existence before January 1, 2002, and then meet one of the criteria in rule

62 - 330.051(4)(e)1.a, 1.b ., or 1.c. The road does not have to meet all of the

three “ownership” criteria in rule 62 - 330.051(4)(e)1.a, 1.b., and 1.c. See Fl a.

Pulp and Paper Ass ’ n Env tl. Affairs, Inc. v. Dep’t of Envtl. Prot. , 223 So. 3d

417, 420 (Fla. 1st DCA 2017)(“... the points of entry listed in section

120.56(2)(a) are separated by the disjunctive conjunction ‘ or, ’ which indicates

that they are mutually exclusive alternatives. ”) ; see also Ellenwood v. Bd. of

Arch. and Int . Design , 835 So. 2d 1269, 1270 (Fla. 2003); Osceola Cty. Sch.

Bd. v. Arace , 884 So. 2d 1003, 1005 (Fla. 1 st DCA 2004); Dep’t of Bus. Reg. v.

Salvation Ltd., Inc., 452 So. 2d 65, 67 (Fla. 1 st DCA 1984).

67 . The evidence establishes that 101st Avenue was in existence before

January 1, 2002, and has been publicly used since that time. The evidence

establishes that 101st Avenue has been regularly maintained and repaired by

the County for more than seven years prior to the Exemption. Thus, the road

repairs meet the standards established in section 9 5.361 and rule 62 -

330.051(4)(e)1.a.

68 . The evidence establishes that the work performed under the

Exemption did not realign 101st Avenue or expand the number of traffic

lanes of 101st Avenue. Furthermore, the repairs to 101st Avenue included

work reasona bly necessary to repair and stabilize the road using generally

accepted roadway design standards. Thus, the road repairs meet the

standards established in rule 62 - 330.051(4)(e) 2 .

69 . The evidence establishes that the work performed under the

Exemption inco rporated effective means of stormwater treatment . Thus, the

road repairs meet the standards established in rule 62 - 330.051(4)(e) 5 .

70 . The evidence establishes that the repairs to 101st Avenue did not

adversely impound or obstruct existing water flow, caus e adverse impacts to

existing surface water storage and conveyance capabilities, or otherwise

cause adverse water quantity or flooding impacts to receiving waters and

adjacent lands. Thus, the road repairs meet the standards established in rule

62 - 330.051( 4)(e) 8 . and rule 62 - 330.050(9)(b)1.

71 . The greater weight of the competent substantial evidence establishes

that the road repair work did not cause or contribute to a violation of state water quality standards , and that turbidity, sedimentation, and erosi on were

controlled during and after construction, and continue to be controlled, to

prevent violations of state water quality standards. Erosion and sediment

control BMP s were installed and maintained in accordance with applicable

guidelines and specificat ions. Any issues with turbidity are not the result of

the repairs to 101st Avenue, but are issues endemic to dirt and limerock roads that long pre - dated the repairs . The evidence establishes that the

repairs reduced turbidity, sedimentation, and erosion from previous levels.

Thus, the road repairs meet the standards established in rule 62 -

330.051(4)(e)8. and rule 62 - 330.050(9)(b) 5 .

72 . The evidence establishes that no excavated material related to the

work under the Exemption was placed at or near Dr. St ill’s property or, for

that matter, anywhere along 101st Avenue. Thus, the road repairs meet the standards established in rule 62 - 330.051(4)(e)8. and rule 62 - 330.050(9)(b) 6 .

73 . As established in the F indings of F act, reasonable assurance was

provided that the County complied with all applicable standards for the

Exemption established by rule 62 - 330.051(4)(e) and rule 62 - 330.050(9)(b) ,

and that the C ounty is entitled to use the Exemption .

A TTORNEYS ’ F EES

74 . The County has moved for an award of attorneys’ fees, e xpenses , and

c osts pursuant to section 120.5 95 .

75 . Section 120.5 95 (1) provides that:

(1) C HALLENGES T O A GENCY A CTION P URSUANT T O

S ECTION 120.57(1). —

* * *

(c) In proceedings pursuant to s. 120.57(1), and

upon motion, the administrative law judge shall

determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the

administrative law judge shall consider whether

the nonp revailing adverse party has participated in

two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more

proceedings the nonprevailing adverse party did

not establish either t he factual or legal merits of its

position, and shall consider whether the factual or legal position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be rebuttably presumed that the nonpreva iling adverse party

participated in the pending proceeding for an improper purpose.

* * *

(e) For the purpose of this subsection:

1. “Improper purpose” means participation in a

proceeding pursuant to s. 120.57(1) primarily to

harass or to cause unnece ssary delay or for

frivolous purpose or to needlessly increase the cost

of litigation, licensing, or securing the approval of

an activity.

* * *

3. “Nonprevailing adverse party” means a party

that has failed to have substantially changed the

outcome of the proposed or final agency action

which is the subject of a proceeding.

76 . An objective test is used to determine whether a party challenged the

agency action for an “improper purpose.” See Friends of Nassau C ty , Inc. v.

Nassau C ty , 752 So. 2d 42, 51 (Fla. 1st DCA 2000). As established in Procacci

Commercial Realty, Inc. v. Department of Health and Rehabilitative Services ,

690 So. 2d 603 (Fla. 1st DCA 1997):

The use of an objective standard creates a

requirement to make reasonable inquiry regarding pertinent facts and applicable law. In the absence of “direct evidence of the party ’ s and counsel ’ s state

of mind, we must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party ’ s or counsel ’ s

sho es would have prosecuted the claim.”

Id. at 608 n. 9 .

77 . Whether a party has participated in a proceeding for an improper

purpose is a question of fact, and even absent direct evidence of intent, “[i] n

determining a party ’ s intent, the finder of fact is entitled to rely upon

permissible inferences from all the facts and circumstances of the case and

the proceedings before him. ” Burke v. Harbor Estates Associates, Inc. , 591 So.

2d 1034, 1037 (Fla. 1st DCA 1991). In that regard, a reviewing judge may

look not only at direct evidence of intent, but may also “examine the

circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party’s or counsel’s shoes would have prosecuted the

claim.” Friends of Nassau C ty , Inc. v. Na ssau Cty ., 752 So. 2d 42, 51 (Fla. 1st

DCA 2000).

78 . There was no evidence to suggest that Dr. Still has participated in two

or more other proceedings involving the County and the repair of 101st Avenue. Thus, the presumption of an improper purpose is not applicable.

79 . The second criteri on by which to measure “improper purpose” is

whether the action was taken primarily to harass or to cause unnecessary delay , for frivolous purpose , or to needlessly increase the cost of securing the

Exemption.

8 0 . 101st Avenue had been, in Dr. Still’s words, “wiped out” after the

August 2017 rains, a condition worsened as a result of Hurricane Irma. The

publicly - used road clearly had to be repaired.

8 1 . It became clear at the hearing that Dr. Still’s primary conc erns were

related to concerns with turbidity and water quality, which Dr. Still admitted

pre - dated the road repairs performed under the Exemption, and were not

worsened due to the exempt road repairs. (Tr. Vol. 2, 346:6 - 14 ; 355:23 - 356:3 ).

8 2 . Dr. Still ad mitted that 101st Avenue had not been altered in its course

due to the exempt road repairs. (Tr. Vol. 2, 339:17 - 24). He did dispute

whether the ROW had shifted from its original course in the years before the

exempt road repair work.

8 3 . Though he disputed ownership of the 101st Avenue ROW , Dr. Still

admitted that he had no evidence that the County does not own the ROW.

(Tr. Vol. 2, 352:25 - 353:10). He further admitted that he did not review section

95.361. (Tr. Vol. 2, 338:4 - 16).

8 4 . Dr . Still’s dis pute as to the extent of the ROW seemingly should have

been , and in fact was, r esolved by his agreement to sell 1.78 acres of land to

the C ounty for the purpose of eliminating possible encroachment onto his

property. That sale was commenced and completed as the work under the declared emergency was ongoing . There was no persuasive evidence to

establish that the disputed 1.78 acres was actually outside of what was understood by the Count y to be the historic ROW, but its purchase

definitively resolved the issue without the time and expense of litigation. It is

difficult to craft an argument that the volitional sale of property to facilitate

road repairs in an undisputed ROW , particularly w hen the travel surface of

the road is unchanged, should then become a basis for denial of authorization

to perform those road repairs.

8 5 . Dr. Still appeared to have a concern with the initial replacement of an

existing 30 - inch culvert with two 24 - inch cu lverts under 101st Avenue. Those

24 - inch culverts appear in most of the photographs depicting the conditions

in the area. However, when those culverts were then replaced (prior to the

filing of the Petition) with one 30 - inch culvert, matching the size of t he

preexisting culvert, any issues that existing water flow from the upgradient

side of 101st Avenue was adversely impounded or obstructed, that the road repairs caused adverse impacts to existing surface water storage and

conveyance capabilities, or that the road repairs caused adverse water

quantity or flooding impacts to receiving waters and adjacent lands were eliminated. There was no evidence offered that the flow of water through the

new 30 - inch culvert was changed at all as a result of the completed road

repairs . (Tr. Vol. 2, 308:18 - 21) . Dr . Still provided no calculations of water flow

or velocity to suggest that the road repairs will result in adverse water

quantity or flooding impacts to receiving waters and adjacent lands.

86 . The only conclusion that can be objectively drawn, given the facts of

this case, is that the action challenging the Exemption was taken primarily

to harass the County and the District, for frivolous purpose, or to needlessly

increase the cost of securing the Exemption.

R ECOMMENDATION

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

R ECOMMENDED that the Suwannee River Water Management District enter a

final order :

a . A pproving the December 10, 2019 , Environmental Resource Permit

(ERP): Exemption, ERP - 007 - 233697 - 2, determining that activities related to

the repair of S outhwest 101st Avenue in Bradford County, Florida , met the

criteria to be an exempt activity pursuant to r ule 62 - 330.051(4)(e) ; and

b . T aking such action pursuant to section 120.595(1) as it deems

appropriate.

c . The undersigned retains jurisdiction to determine the award of costs

and attorneys ’ fees pursuant to section 120.595(1)(d) , if the final order makes

such an award and the case is remanded by the Suwannee River Water

Management District to DOAH for that purpose.

D ONE A ND E NTERED this 19th day of November , 20 20 , in Tallahassee,

Leon County, Florida.

E. G ARY E ARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of November , 2020 .

C OPIES F URNISHED :

George T. Reeves, Esquire Davis, Schnitker, Reeves

and Browning, P.A.

Post Office Drawer 652

Madison, Florida 32341

(eServed)

Paul Edward Still

14167 Southwest 101st Avenue

Starke, Florida 32091

(eServed)

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Richey, Florida 34562

(eServed)

William Edward Sexton, County Attorney

Bradford County, Florida

945 North Temple Avenue

Post Office Drawer B

Starke, Florida 32091

(eSer ved)

Hugh L. Thomas, Executive Director

Suwannee River Water

Management District

9225 County Road 49

Live Oak, Florida 32060

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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.