97-002845 Greenspace Preservation Association, Inc.; Frank Ward; Sal Locascio; Frederick P. Peterkin; And Harold M. Stahmer vs. St. Johns River Water Management District And City Of Gainesville Status: Closed Recommended Order on Friday, December 19, 1997.

Summary: Applicant demonstrated entitlement to stormwater permits to construct a greenway in City of Gainesville. Request for fees and costs denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREENSPACE PRESERVATION )

ASSOCIATION, INC.; FRANK )

WARD; SAL LOCASCIO; )

FREDERICK P. PETERKIN; and )

HAROLD M. STAHMER, )

)

Petitioners, )

)

vs. ) Case Nos. 97-2845

) 97-2846

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT and )

CITY OF GAINESVILLE, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on October 20 and

21, and November 6, 1997, in Gainesville, Florida, by Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Samuel A. Mutch, Esquire

2790 Northwest 43rd Street

Suite 100, Meridien Centre

Gainesville, Florida 32606

For Respondent: Jennifer B. Springfield, Esquire

(District) Mary Jane Angelo, Esquire

Post Office Box 1429

Palatka, Florida 32178-1429

For Respondent: Richard R. Whiddon, Jr., Esquire

(City) Post Office Box 1110

Gainesville, Florida 32602-1110

STATEMENT OF THE ISSUE

The issue is whether the City's applications for an

individual stormwater permit and a noticed general environmental

resource permit for Phase 1A of the proposed Hogtown Creek

Greenway should be approved.

PRELIMINARY STATEMENT

Case No. 97-2845 began in May 1997 when Respondent, St.

Johns River Water Management District, issued its notice of

intent to issue an individual stormwater permit to Respondent,

City of Gainesville, authorizing the construction of a 2,000 foot

long asphaltic trail/boardwalk, a parking facility, and

associated improvements related to Phase IA of the Hogtown Creek

Greenway project in the City of Gainesville. Case No. 97-2846

involves the proposed issuance of a noticed general environmental

resource permit to the City of Gainesville to construct 481

square feet of piling supported structures over wetlands or

surface waters for the same project.

On June 9, 1997, Petitioners, Greenspace Preservation

Association, Inc., Frank Ward, Sal Locascio, Frederick P.

Peterkin, Harold M. Stahmer and Jane B. Conner, filed Petitions

for Initiation of Formal Proceedings with the St. Johns River

Water Managment District seeking to contest the issuance of the

two permits.

The cases were referred by the agency to the Division of

Administrative Hearings on June 13, 1997, with a request that an

Administrative Law Judge be assigned to conduct a final hearing.

By Notice of Hearing dated July 2, 1997, the two cases were

consolidated and a final hearing was scheduled on October 1 and

2, 1997, in Gainesville, Florida. Petitioners' Motion to

Reschedule was granted, and the hearing was continued to October

20 and 21, 1997, at the same location. At Petitioners' request,

the cases were again rescheduled to October 21 and 22, 1997.

On June 30, 1997, Respondents filed Motions to Strike

certain portions of the petitions. The motions were granted by

order dated August 2, 1997, and Petitioners were required to file

amended petitions reflecting the changes required by the order.

Thereafter, on September 19 and 24, 1997, Petitioners filed a

First Amended Petition for Initiation of Formal Proceedings in

Case No. 96-2845 and a Second Amended Petition for Initiation of

Formal Proceedings in Case No. 96-2846. On October 13, 1997, the

undersigned granted a Motion to Strike paragraph (e)(3) on pages

4 and 5 of the Second Amended Petition.

At final hearing, Jane B. Conner was removed as a party due

to ill health. The remaining Petitioners presented the testimony

of Thomas L. Morris, accepted as an expert in biology and impacts

of construction projects on the biota of North Florida; Dr. David

L. Auth, accepted as an expert in zoology and herpetology in the

State of Florida; Dr. Daniel B. Ward, accepted as an expert in

botany; and Charles Swallows, a professional engineer and

accepted as an expert in civil engineering. Also, they offered

Petitioners' Exhibits 1-6. All exhibits except number 2 were

received in evidence. Respondent St. Johns River Water

Management District presented the testimony of Timothy Segul,

accepted as an expert in water resource engineering; Barbara

Hatchitt, accepted as an expert in wetlands ecology, wetlands

delineation, and environmental resource permitting; Patrick M.

Frost, accepted as an expert in wetlands ecology and water

managment permitting; and Rory Causseaux. Also, it offered

District Exhibits 1, 2, 3A and B, 4, 5A-D, 6 and 8. All exhibits

were received in evidence. The City presented the testimony of

Rory Causseaux, a professional engineer and accepted as an expert

in civil engineering; Larry Sellers, accepted as an expert in

wetland delineation; Wayne Bowers; Theresa Scott; Deanna Kinnard;

and Timothy Sagul. Also, it offered City Exhibits 1-26. All

exhibits were received. Finally, the undersigned took official

recognition of Chapters 40C-1, 40C-41, 40C-42, 40C-400, 62-302,

62-340, 62-520, and 62-550, Florida Administrative Code; the St.

Johns River Water Management District's Applicants Handbook:

Regulation of Stormwater Management Systems, Chapter 40C-42,

Florida Administative Code, dated October 3, 1995; Rules

39-27.003, 39-27.004, 39-27.005, and 40C-4.021, Florida

Administrative Code; and 50 Code of Federal Regulations, Section

17.12.

The transcript of hearing (five volumes) was filed on

November 13, 1997. Proposed findings of fact and conclusions of

law were due no later than December 1, 1997. They were timely

filed by Respondents, and they have been considered by the

undersigned in the preparation of this Recommended Order.

On December 15, 1997, or two weeks after the designated due

date, Petitioners filed proposed findings of fact and conclusions

of law. That proposed order is the subject of a Motion to Strike

filed by the agency.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. In these two cases, Respondent, City of Gainesville

(City), seeks the issuance of a stormwater system management

permit (stormwater permit) to construct a 2,000-foot long

asphaltic trail/boardwalk, a parking facility and associated

improvements for Phase 1A of the Hogtown Creek Greenway project

in the north central portion of the City. That matter is

docketed as Case No. 97-2845. The City also seeks the issuance

of a noticed general environmental resource permit (NGP) to

construct 481 square feet of piling supported structures over

wetlands or surface waters for the same project. That matter has

been assigned Case No. 97-2846. Respondent, St. Johns River

Water Management District (District), is the regulatory agency

charged with the responsibility of reviewing and approving the

requested permits.

2. Petitioner, Greenspace Preservation Association, Inc.,

is a not-for-profit Florida corporation primarily composed of

persons who own real property adjacent to the route proposed by

the City, as well as local environmental interests. Petitioners,

Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M.

Stahmer, are individuals who own real property adjacent to the

route proposed by the City for the Greenway. The parties have

stipulated that Petitioners are substantially affected by the

District's proposed action and thus have standing to initiate

these cases.

3. On March 28, 1997, the City filed applications for a

stormwater permit and a NPG for Phase IA of the Hogtown Creek

Greenway project. After conducting a review of the applications,

including an on-site visit to the area, in May 1997, the District

proposed to issue the requested permits.

4. On June 9, 1997, Petitioners timely filed a Petition for

Initiation of Formal Proceedings as to both intended actions. As

amended and then refined by stipulation, Petitioners generally

allege that, as to the stormwater permit, the City has failed to

provide reasonable assurance that the project meets the

permitting requirements of the District; the City has failed to

provide reasonable assurance that the stormwater system will not

cause violations of state water quality standards; the City has

failed to provide reasonable asurance that the project satisfies

the District's minimum required design features; and the City has

failed to provide reasonable assurance that the stormwater system

is capable of being effectively operated and maintained by the

City.

5. As to the NPG, Petitioners generally allege that the

piling supported structure is not less than 1,000 square feet;

the jurisdictional wetlands are greater than the area shown on

the plans submitted by the City; the City has failed to provide

reasonable assurance that the system will not significantly

impede navigation; the City has failed to provide reasonable

assurance that the system does not violate state water quality

standards; the City has failed to provide reasonable assurance

that the system does not impede the conveyance of a watercourse

in a manner that would affect off-site flooding; the City has

failed to provide reasonable assurance that the system will not

cause drainage of wetlands; and the City failed to provide

reasonable assurance that the system does not adversely impact

aquatic or wetland dependent listed species.

6. Respondents deny each of the allegations and aver that

all requirements for issuance of the permits have been met. In

addition, the City has requested attorney's fees and costs under

Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the

theory that these actions were filed for an improper purpose.

B. A General Description of the Project

7. The Hogtown Creek Greenway is a long-term project that

will eventually run from Northwest 39th Street southward some

seven miles to the Kanapaha Lake/Haile Sink in southwest

Gainesville. These cases involve only Phase 1A of that project,

which extends approximately one-half mile. This phase consists

of the construction of a 2,000-foot long asphaltic concrete

trail/boardwalk, a timber bridge and boardwalk, a parking

facility, and associated improvements. The trail will extend

from the Loblolly Environmental Facility located at Northwest

34th Street and Northwest 5th Avenue, to the intersection of

Northwest 8th Avenue and Northwest 31st Drive.

8. The trail will have a typical width of ten feet. For

the majority of its length, the trail will be constructed of

asphaltic concrete overlying a limerock base, and it will

generally lie at the existing grade and slope away from the

creek.

9. Besides the trail, additional work involves the repaving

of Northwest 5th Avenue with the addition of a curb and gutter,

the construction of an entrance driveway, paved and grassed

parking areas, and sidewalks at the Loblolly Environmental

Facility, and the widening and addition of a new turn lane and

pedestrian crosswalk at the intersection of Northwest 8th Avenue

and Northwest 31st Drive.

C. The Stormwater Permit

a. Generally

10. The entire Phase IA project area lies within the

Hogtown Creek 10-year floodplain. It also lies within the

Hogtown Creek Hydrologic Basin, which basin includes

approximately 21 square miles. The project area for the proposed

stormwater permit is 4.42 acres.

b. Water quality criteria

11. Phase IA of the Greenway will not result in discharges

into surface groundwater that cause or contribute to violations

of state water quality standards.

12. When a project meets the applicable design criteria

under the District's stormwater rule, there is a presumption that

the project will not cause a violation of state water quality

standards. There are two dry retention basins associated with

the project. Basin 1 is located at the cul-de-sac of Northwest

5th Avenue and will capture and retain the stormwater runoff from

the new and reconstructed impervious areas at the Loblolly

Facility. Basin 2 is located at the parking area and will

capture and retain stormwater runoff at the existing building and

proposed grass parking area.

13. Under the stormwater rule, the presumptive criteria for

retention basins require that the run-off percolate out of the

basin bottom within 72 hours. The calculations performed by the

City's engineer show that the two retention basins will recover

within that timeframe. In making these calculations, the

engineer used the appropriate percolation rate of ten inches per

hour. Even using the worst case scenario with a safety factor of

twenty and a percolation rate of one-half inch per hour, the two

retention basins will still recover within 72 hours.

14. The presumptive criteria for retention basins require

that the basin store a volume equal to one inch of run-off over

the drainage area or 1.25 inches of run-off over the impervious

area plus one-half inch of run-off over the drainage area. The

calculations performed by the City's engineer show that the two

retention basins meet the District's volume requirements for

retention systems.

15. An applicant is not required to utilize the presumptive

design criteria, but instead may use an alternative design if the

applicant can show, based on calculations, tests, or other

information, that the alternative design will not cause a

violation of state water quality standards. As a general rule,

the District applies its stormwater rule so that water quality

treatment is not required for projects or portions of projects

that do not increase pollutant loadings. This includes linear

bicycle/pedestrian trails. The City's proposed trail will not be

a source of pollutants.

16. The City will install signs at both entrances to the

trail to keep out motorized vehicles. Except for emergency and

maintenance vehicles, motorized vehicles will not be permitted on

the trail. The infrequent use by emergency or maintenance

vehicles will not be sufficient to create water quality concerns.

The construction of a treatment system to treat the stormwater

from the trail would provide little benefit and would only serve

to unnecessarily impact natural areas.

17. Although treatment of the stormwater run-off from the

trail portion of the project is not required under District

rules, the run-off will receive treatment in the vegetated upland

buffer adjacent to the trail. The District's proposed other

condition number 3 will require the City to plant vegetation in

unvegetated and disturbed areas in the buffer. This will reduce

the likelihood of erosion or sedimentation problems in the area

of the trail. Although disputed at hearing, it is found that the

City's engineer used the appropriate Manning coefficient in the

calculations regarding the buffer. Even without a vegetated

buffer, run-off coming from the bicycle trail will not violate

state water quality standards.

18. The City will install appropriate erosion and sediment

controls. These include siltation barriers along the entire

length of both sides of the proposed trail prior to commencing

construction. Such barriers will not allow silt or other

material to flow through, over, or under them.

19. The City will also place hay bales and any other silt

fencing necessary to solve any erosion problem that may occur

during construction. In addition, the permit will require an

inspection and any necessary repairs to the siltation barriers at

the end of each day of construction.

20. Saturation of the limerock bed under the paved portion

of the trail is not expected to cause a problem because heavy

vehicles will not regularly use the trail. The trail portion of

the project can be adequately maintained to avoid deterioration.

c. Sensitive Karst Areas Basin criteria

21. The two proposed dry retention basins for Phase 1A are

located within the District's Sensitive Karst Areas Basin. They

include all of the minimum design features required by the

District to assure adequate treatment of the stormwater before it

enters the Floridan aquifer and to preclude the formation of

solution pipe sinkholes in the stormwater system.

22. There will be a minimum of three feet of unconsolidated

soil material between the surface of the limestone bedrock and

the bottom and sides of the two retention basins. The

appropriate mechanism for determining the depth of limestone is

to do soil borings. The soil borings performed by the City show

that there is at least three feet of unconsolidated material

between the bottom of the basins and any limerock where the

borings were taken. In other words, limestone would not be

expected to be within three feet of the bottom of either basin.

Based on the soil boring results, the seasonal high water table

is at least six feet below ground level.

23. The depth of the two retention basins will be less than

ten feet. Indeed, the depth of the basins will be as shallow as

possible and will have a horizontal bottom with no deep spots.

To make the retention basins any larger would require clearing

more land. A large shallow basin with a horizontal bottom

results in a lower hydraulic head and therefore is less potential

for a sinkhole to form. Before entering the basins, stormwater

will sheet flow across pavement and into a grass swale, thereby

providing some dispersion of the volume.

24. Finally, the two retention basin side slopes will be

vegetated. Special condition number 7 provides that if limestone

is encountered during excavation of a basin, the City must over-

excavate the basin and backfill with three feet of unconsolidated

material below the bottom of the basin.

d. Drainage and flood protection

25. Contrary to Petitioners' assertions, the project will

not adversely affect drainage or flood protection on surrounding

properties.

26. The trail will be constructed generally at existing

grade. Because the trail will be constructed at existing grade,

the net volume of fill necessary for Phase 1A is approximately

zero. Therefore, there will not be a measurable increase in the

amount of runoff leaving the site after construction, and the

trail will not result in an increase in off-site discharges.

27. District rules require that the proposed post-

development peak rate of discharge from a site not exceed the

pre-development peak rate of discharge for the mean annual storm

only for projects that exceed fifty percent impervious surface.

The proposed project has less than fifty percent impervious

surface. Even though it is not required, the City has

demonstrated that the post-development rate of discharge will not

exceed the pre-development peak rate of discharge.

28. Both basins will retain the entire mean annual storm so

that the post-development rate of discharge is zero. Even during

a 100-year storm event, the retention basins willl not discharge.

Therefore, there will not be any increase in floodplain

elevations during the 10, 25, or 100-year storm events from the

proposed project.

e. Operation and maintenance entity requirements

29. The applicable requirements of Chapter 40C-42, Florida

Administrative Code, regarding operation and maintenance, have

been met by the applicant.

30. The City proposes itself as the permanent operation and

maintenance entity for the project. This is permissible under

District regulations. The duration for the operation and

maintenance phase of the permit is perpetual.

31. The City has adequate resources and staff to maintain

the phase 1A portion of the project. The public works department

will maintain the stormwater management system out of the City's

utility fund.

32. The City provides periodic inspections of all of its

stormwater systems. These inspections are paid for out of the

collected stormwater fees. The City will also conduct periodic

inspections of the project area, and the two retention basins

will be easily accessed by maintenance vehicles.

33. The City will be required to submit an as-built

certification, signed and sealed by a professional engineer, once

the project is constructed. Monthly inspections of the system

must be conducted looking for any sinkholes or solution cavities

that may be forming in the basins. If any are observed, the City

is required to notify the District and repair the cavity or

sinkhole.

34. Once the system is constructed, the City will be

required to submit an inspection report biannually notifying the

District that the system is operating and functioning in

accordance with the permitted design. If the system is not

functioning properly, the applicant must remediate the system.

35. The City will be required to maintain the two retention

basins by mowing the side slopes, repairing any erosion on the

side slopes, and removing sediment that accumulates in the

basins. Mowing will be done at least six times per year. The

City will stabilize the slopes and bottom areas of the basins to

prevent erosion.

36. The City has a regular maintenance schedule for

stormwater facilities. The project will be included within the

City's regular maintenance program.

37. The City has budgeted approximately $80,000.00 for

maintenance of the trail and vegetated buffer. Also, it has

added new positions in its budget that will be used to maintain

and manage the Greenway system.

38. Finally, City staff will conduct daily inspections of

the Phase 1A trail looking for problems with the vegetated

buffer, erosion problems along the trail, and sediment and debris

in the retention basin. If the inspections reveal any problems,

the staff will take immediate action to correct them.

D. The Noticed General Environmental Resource Permit

a. Generally

39 . By this application, the City seeks to construct 481

square feet of piling supported structures over wetlands or

surface waters. The proposed structures include a 265 square

foot timber bridge over an un-vegetated flow channel, which

connects a borrow area to Possum Creek, and a 216 square foot

boardwalk over two small wetland areas located south of the flow

channel. None of the pilings for the bridge or boardwalk will be

in wetlands, and no construction will take place in Hogtown or

Possum Creeks. The paved portion of the trail will not go

through wetlands, and there will be no dredging or filling in

wetlands.

40. The receiving waters for the project are Hogtown and

Possum Creeks. Both are Class III waters. Hogtown Creek

originates in north central Gainesville and flows southwest to

Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek

originates in northwest Gainesville and flows southeast to its

confluence with Hogtown Creek south of the proposed bridge

structure.

b. Wetlands

41. The total area of the proposed bridge and boardwalk

over surface water or wetlands is approximately 481 square feet.

The wetland delineation shown on the City's Exhibit 5A includes

all of the areas in the project area considered to be wetlands

under the state wetland delineation methodology.

42. The United State Army Corps of Engineers' wetland line

includes more wetlands than the District wetland line. The

former wetland line was used to determine the area of boardwalk

and bridge over wetlands. Even using this line, however, the

total area of boardwalk over surface waters or wetlands is

approximately 481 square feet and is therefore less than 1,000

square feet.

c. Navigation

43. The proposed system does not significantly impede

navigation. Further, the structures will span a wetland area and

an un-vegetated flow channel, both of which are non-navigable.

In fact, the flow channel generally exhibits little or no flow

except after periods of rainfall.

d. Water quality

44. The construction material that will be used for the

bridge and boardwalk will not generate any pollutants. Morever,

chemical cleaners will not be used on those structures.

45. Silt fences will be used and vegetation will be planted

in the vicinity of the bridge and boardwalk to prevent erosion

and sedimentation problems. The amount of erosion from drip that

comes off the boardwalk will be minimal. Therefore, the bridge

and boardwalk will not cause a violation of state water quality

standards.

e. Off-site flooding

46. The project will not impede conveyance of any stream,

river, or other water course which would increase off-site

flooding.

47. The structures will completely span the wetland areas

and flow channel, and no part of the structures, including the

pilings, will lie within any water or wetland areas including the

flow channel. There will be a span of 2.5 to 3 feet from the

horizontal members of the bridge and boardwalk down to the ground

surface which will allow water to pass through unobstructed.

Further, there will not be any cross ties or horizontal

obstructions on the lower portions of the boardwalk or bridge

pilings. Further, due to the spacing of the pilings, the

boardwalk and bridge will not trap sufficient sediment such as

leaves to impede the conveyance of the flow channel. Therefore,

conveyance through the flow channel will not be affected by the

structures.

48. Because the boardwalk and bridge are not over Hogtown

or Possum Creeks, they will not cause any obstruction to the

conveyance of the creeks.

f. Aquatic and wetland dependent listed species

49. The project will not adversely affect any aquatic or

wetland dependent listed species. These species are defined by

District rule as aquatic or wetland dependent species listed in

Chapter 39-27, Florida Administrative Code, or 50 Code of Federal

Regulations, Part 17.

50. No such species are known to exist in the project area,

and none are expected to exist in the location and habitat type

of the project area. Therefore, contrary to Petitioners'

assertions, there are no listed salamander, frog, turtle, or

lizard species known to occur within the Hogtown Creek basin.

51. Although it is possible that the box turtle may be

found in the project area, it is not an aquatic or wetland

dependent listed species.

52. One baby American alligator (between two and three feet

in length) was observed in the borrow pit area of the project on

September 11, 1997. Except for this sighting, no other listed

animal species have been observed in the project area. As to the

alligator, the only area in which it could nest would be in the

existing excavated borrow pit, and none of the proposed

construction will take place in that area. More than likely, the

alligator had walked into the area from Clear Lake, Kanapaha

Prairie, or Lake Alice. The proposed structures will not affect

the movement of the alligator nor its feeding habits.

g. Drainage of wetlands

53. Because the boardwalk and bridge are elevated

structures over waters and wetlands, and the City has not

proposed to construct ditches or other drainage systems, the

proposed system will not cause drainage of the wetlands.

h. Coral/macro-marine algae/grassbeds

54. The proposed system is not located in, on, or over

coral communities, macro/marine algae, or a submerged grassbed

community.

D. Were the Petitions Filed for an Improper Purpose ?

55. Prior to the filing of their petitions, Petitioners did

not consult with experts, and they prepared no scientific

investigations. Their experts were not retained until just prior

to hearing.

56. Petitioners are citizens who have genuine concerns with

the project. They are mainly longtime residents of the area who

fear that the Greenway will not be properly maintained by the

City; it will increase flooding in the area; it will cause water

quality violations; and it will attract thousands of persons who

will have unimpeded access to the back yards of nearby residents.

Although these concerns were either not substantiated at hearing

or are irrelevant to District permitting criteria, they were

nonetheless filed in good faith and not for an improper purpose.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.57(1), Florida Statutes.

58. As the party seeking the issuance of two permits, the

City bears the burden of proving by a preponderance of the

evidence that it is entitled to such permits. See Dep't of

Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

59. The District's requirements applicable to the City's

stormwater application are found in Rules 40C-42.023(1), 40C-

42.025, 40C-42.026(1), 40C-42.027, 40C-42.028, and 40C-42.029,

Florida Administrative Code. By a preponderance of the evidence,

the City has demonstrated compliance with all pertinent criteria.

The City has also satisfied the additional requirements in Rule

40C-41.063(6), Florida Administrative Code, for projects located

within the Sensitive Karst Areas Basin.

60. The District's requirements applicable to the City's

noticed general environmental resource permit application are

found in Rule 40C-400.475(2), Florida Administrative Code. By a

preponderance of the evidence, the City has provided the

reasonable assurances required by the rule.

61. Finally, the City has asked that Petitioners be

required to reimburse it for attorney's fees and costs on the

theory that the petitions were filed for an improper purpose.

Section 120.595(1)(b), Florida Statutes (Supp. 1996), provides

that:

The final order in a proceeding pursuant to

s. 120.57(1) shall award reasonable costs and

a reasonable attorney's fee to the prevailing

party only where the nonprevailing adverse

party has been determined by the

administrative law judge to have participated

in the proceeding for an improper purpose.

62. Subparagraph (e)1. of the same statute defines the term

"improper purpose" as follows:

"Improper purpose" means participation in a

proceeding pursuant to s. 120.57(1) primarily

to harass or to cause unnecessary delay or

for frivolous purpose or to needlessly

increase the cost of licensing or securing

the approval of an activity.

63. The City did, of course, prevail in these actions.

Even so, the record does not support an award of attorney's fees

and costs. This is because the undersigned has concluded that

the petitions were filed in good faith and not for the purpose of

delaying the issuance of the permits or needlessly increasing the

costs of the City in securing the permits. This being so, the

request by the City for attorney's fees and costs is denied.

64. Finally, the District's Motion to Strike Petitioners'

Proposed Recommended Order as being untimely is granted. Here,

Petitioners failed to request leave to late-file their order, the

order does not comport with the format required by Division rule,

and the order essentially responds to proposed findings contained

in the City's filing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order approving the applications of the

City of Gainesville and issuing the requested permits.

DONE AND ENTERED this 19th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December, 1997.

COPIES FURNISHED :

Henry Dean, Executive Director

St. Johns River Water

Management District

Post Office Box 1429

Palatka, Florida 32178-1429

Samuel A. Mutch, Esquire

2790 Northwest 43rd Street

Suite 100, Meridien Centre

Gainesville, Florida 32606

Jennifer B. Springfield, Esquire

Mary Jane Angelo, Esquire

Post Office Box 1429

Palatka, Florida 32178-1429

Richard R. Whiddon, Jr., Esquire

Post Office Box 1110

Gainesville, Florida 32602-1110

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this

Recommended Order within fifteen days. Any exceptions to this

Recommended Order should be filed with the St. Johns River Water

Management District.