93-006656 James H. Moore And Jerrilyn Moore vs. Paul Bridges And Suwannee River Water Management District Status: Closed Recommended Order on Wednesday, March 2, 1994.

Summary: Smaller culvert should be installed to return surface water flow to its original state.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. and JERRILYN MOORE, )

)

Petitioners, )

)

vs. ) CASE NO. 93-6656

)

PAUL BRIDGES and SUWANNEE )

RIVER WATER MANAGEMENT DISTRICT, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this proceeding

before Daniel Manry, a duly designated Hearing Officer of the Division of

Administrative Hearings, on February 14, 1994, in Trenton, Florida.

APPEARANCES

For Petitioners: James H. and Jerrilyn Moore, pro se

Route 2, Box 120-E

Trenton, Florida 32693

For Respondent: Paul Bridges, pro se

Paul Bridges Route 2, Box 120K-1

Trenton, Florida 32693

For Respondent: Janice F. Bessinger, Esquire

Suwannee River Brannon, Brown, Haley, Robinson & Cole

Water Management Post Office Box 1029

District Lake City, Florida 32056-1029

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent,

Suwannee River Water Management District, should issue a General Surfacewater

Management Permit to Respondent, Paul Bridges, to replace a 62 inch road culvert

with a 24 inch culvert.

PRELIMINARY STATEMENT

The matter was referred to the Division of Administrative Hearings for

assignment of a Hearing Officer and assigned to Hearing Officer Donald R.

Alexander on November 17, 1993. The formal hearing was set for February 14,

1994, pursuant to a Notice of Hearing issued on December 8, 1993. The matter

was transferred to the undersigned on February 8, 1994.

At the formal hearing, Petitioners presented the testimony of Respondent,

Bridges, and Messrs. Glenn Miller, Terry Demott and Craig Hinnis. Petitioners

submitted nine exhibits for admission in evidence. Exhibit 1 is a copy of a

letter from Respondent, Suwannee River Water Management District (the

"District") to Respondent, Bridges, dated May 28, 1991. Exhibit 2 is a copy of

a picture of a road. Exhibit 3 is a copy of the Application For Agriculture Or

Forestry General Surfacewater Management Permit. Exhibit 4 is a copy of a soil

conservation map of the area. Exhibit 5 is a copy of a letter from the District

to Petitioner, James Moore, dated October 20, 1993. Exhibit 6 is a copy of a

letter from the District to Mrs. Linda Bridges dated November 19, 1993. Exhibit

7 is a composite exhibit consisting of copies of three pictures of the Bridges

farm pond. Exhibit 8 is a copy of a letter from the District to Mr. David

Schilling, ITT Rayonier, dated August 18, 1982. Exhibit 9 is a copy of an

inspection report by the District.

Petitioners' Exhibits 1, 3, 5, 6, 8, and 9 were admitted in evidence

without objection. Petitioners' Exhibits 2 and 7 were admitted in evidence over

objection. Petitioners' Exhibit 4 was rejected pursuant to objection.

The parties stipulated to the admission of two joint exhibits. J-1 is an

aerial map of the area. J-2 is a composite exhibit of two topographic maps of

the area.

Respondent, Bridges, testified in his own behalf and presented the

testimony of Mr. Dennis Tew. The District presented the testimony of Mr. Terry

Demott, Compliance Coordinator for the District. The District submitted no

exhibits for admission in evidence other than J-1 and J-2.

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

Petitioners and the District timely filed proposed findings of fact and

conclusions of law on February 23 and 24, 1994, respectively. Respondent,

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

filed in this proceeding are addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Petitioners own property located in Section 6, Township 9, Range 16

East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns

property adjacent to and south of the Moore property (the "Bridges property").

Respondent, Bridges ("Bridges"), is in possession and control of the Bridges

property.

2. Mr. Glenn Miller owns property adjacent to and south of the Bridges

property (the "Miller property"). ITT-Rayonier owns property west of the Moore,

Bridges, and Miller properties (the "ITT property").

3. A dirt road runs north and south in front of and along the western

border of the Moore, Bridges, and Miller properties (the "road"). The road

separates the ITT property, to the west, from the Moore, Bridges, and Miller

properties, to the east.

4. Prior to 1989, surfacewater historically flowed in a northeasterly

direction. It flowed northeasterly from the ITT property through a 24 inch road

culvert onto the Bridges property. It then flowed north through a 36 inch

culvert on the southerly portion of the Moore property, across the Moore

property, and into Weeks Lake to the north of the Moore property.

5. In 1989, with the consent of Bridges but without a permit from the

District, Petitioners began a construction plan that included the installation

of two 62 inch culverts to enhance the northeasterly flow of surfacewater from

the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the

24 inch culvert under the road forming the westerly boundary between the ITT

property and the Moore and Bridges properties. The second 62 inch culvert was

intended to replace the 36 inch culvert on the southerly boundary of the Moore

property. The second 62 inch culvert was needed so the same volume of

surfacewater flowing from the ITT property through the 62 inch road culvert

could continue its northerly flow from the Bridges property to the Moore

property and on to Weeks Lake.

6. Petitioners replaced the 24 inch road culvert with a 62 inch culvert

but left intact the 36 inch culvert on the southerly portion of their property.

Thus, a greater volume of surfacewater can flow from the ITT property through

the 62 inch culvert onto the Bridges property but a lesser volume of

surfacewater can flow from the Bridges property through the 36 inch culvert onto

the Moore property.

7. Petitioners removed fill material from the ITT property to widen and

increase the height of the road bed on the westerly boundary between the ITT and

Moore properties. The heightened road bed impounds a greater volume of

surfacewater on the ITT property before it flows over the road onto the Moore

property. This can increase the rate of flow of surfacewater through the 62

inch road culvert onto the Bridges property under certain circumstances.

8. Petitioners increased the depth and width of existing ditches, and

added new ditches along a portion of the road bed onto the Bridges property.

The increased ditch capacity further increases the volume of surfacewater that

can flow onto the Bridges property.

9. Petitioners constructed a berm running east and west on the southerly

boundary of the Moore property. This increases the volume of surfacewater that

can be impounded on the Bridges property without flowing onto the Moore property

through areas other than the 36 inch culvert that Petitioners left intact on the

southerly portion of their property.

10. The 62 inch road culvert, increased ditch capacity, heightened road bed

between the ITT and Moore properties, the berm on the southerly portion of the

Moore property, and the 36 inch culvert increase the volume of surfacewater that

is impounded on the Bridges property before continuing its historic

northeasterly flow. Surfacewater impounded on the Bridges property floods the

Bridges property and properties to the south of the Bridges property.

11. Although flooding occurred on the Bridges property prior to the 1989

construction, flooding on the Bridges property and properties south of the

Bridges property is greater since Petitioners completed construction. In

addition, the ITT property drains more readily.

12. On or about October 13, 1993, Bridges applied to the District for a

General Surfacewater Management Permit to replace the 62 inch road culvert with

a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a).

A General Surfacewater Management Permit is issued for activities that have

little or no potential adverse impact to surfacewater resources for the

District.

13. The application satisfied all of the criteria for the permit at issue.

ITT does not object to the proposed permit even though more surfacewater will be

impounded on the ITT property. Issuance of the proposed permit will approximate

the flow of surfacewater that existed prior to Petitioners' installation of a 62

inch road culvert without a permit in 1989.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto. Section 120.57(1),

Florida Statutes. The parties were duly noticed for the formal hearing.

15. The burden of proof is on the applicant in this proceeding. The

applicant must show by a preponderance of the evidence that the proposed permit

should be issued. Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So.2d 778 (Fla. 1st DCA 1981).

16. The applicant satisfied his burden of proof. The applicant proved by a

preponderance of the evidence that he satisfied applicable requirements for the

permit and that the District followed applicable requirements in reaching its

decision to issue the permit. Florida Administrative Code Rules 40B-

4.2010(1)(a) and 40B-4.2020(1).

RECOMMENDATION

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

RECOMMENDED that Respondent, Suwannee River Water Management District,

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

Agriculture Or Forestry General Surfacewater Management Permit.

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

___________________________________

DANIEL S. MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656

Petitioners' Proposed Findings Of Fact.

1.-4. Rejected as immaterial

5. Rejected as recited testimony

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

8. Rejected as irrelevant and immaterial

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

14.-15. Rejected as irrelevant and immaterial

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

20. Rejected as irrelevant and immaterial

21. Rejected as not supported by credible and persuasive evidence

22. Rejected as recited testimony

23.-24. Rejected as not supported by credible and persuasive evidence

Respondent, Paul Bridges, Proposed Findings Of Fact.

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

Respondent, Suwannee River Water Management District, Proposed Findings Of Fact.

All of the District's proposed findings of fact are accepted in substance.

COPIES FURNISHED:

James H. and Jerrilyn Moore, pro se

Route 2, Box 120-E

Trenton, FL 32693

Paul Bridges, pro se

Route 2, Box 120K-1

Trenton, FL 32693

Janice F. Bessinger, Esquire

Brannon, Brown, Haley, Robinson & Cole

Post Office Box 1029

Lake City, FL 32056-1029

Jerry Scarborough, Executive Director

Suwannee River Water Management District

Route 3, Box 64

Live Oak, FL 32060

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.