01-002571 Frank C. Kunnen, Jr. vs. Southwest Florida Water Management District And Department Of Transportation Status: Closed Recommended Order on Monday, December 17, 2001.

Summary: Department made prima facie showing it is entitled to modification permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK C. KUNNEN, JR., )

)

Petitioner, )

)

vs. ) Case No. 01 - 2571

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT AND )

DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted

the administrative hearing of this case on September 26 and

27, 2001, in Tampa, Florida, on behalf of the Division of

Administrative Hearings ("DOAH").

APPEA RANCES

For Petitioner: James A. Helinger, Esquire

Law Offices of James A. Helinger

814 Chestnut Street

Clearwater, Florida 33756

For Respondent Robert C. Downie, II, Esquire

Florida Florida Department of Transportation

Department of 605 Suwanee Street, Mail Station 58

Transportation: Tallahassee, Florida 32399 - 0458

For Respondent Christine C. Stretsky, Esquire

Southwest Mark F. Lapp, Esquire

Florida Water Southwest Florida Water Management

Management District

District: 2379 Broad Street

Brooksville, Florida 34604 - 6899

STATEMENT OF THE ISSUE

The issue is whether Respondent, Southwest Florida Water

Management District (the "District"), should approve the

application of Respondent, Florida Department of

Transportation ("DOT"), for modification of a standard general

environmental resource permit: modification permit no.

44011760.010 (the "modification permit").

PRELIMINARY STATEMENT

On January 19, 2001, DOT filed an application with the

District seeking approval of the modification permit. On

June 1, 2001, the District issued a Notice of Final Agency

Action approving DOT’s application for the modification

permit. On June 15, 2001, Petitioner filed a Petition for

Formal Administrative Hearing contesting the modification

permit.

Prior to the hearing, the parties filed a Pre - Hearing

Stipulation with DOAH. The parties stipulated to the accuracy

and veracity of Respondents’ Exhibits 1, 2, and 6 and to the

accuracy of the first seasonal high groundwater elev ations

found in Respondents’ Composite Exhibit 3.

At the administrative hearing, the parties entered ore

tenus stipulations on the record. The parties stipulated that

DOT has satisfied the requirement for reasonable assurances of

the criteria found in F lorida Administrative Code Rule 40D -

4.301(1)(d), (f), (h), (j), and (k). (Unless otherwise stated,

all references to rules are to rules promulgated in the

Florida Administrative Code as of the date of this Recommended

Order.) The parties also stipulated th at the permitted project

does not negatively affect any of the criteria in the public

interest test in Rule 40D - 4.302(1)(a)2 - 7. Finally, the

parties stipulated that DOT has met the conditions set forth

in Rule 40D - 4.302(1)(b), (c), and (d). These and add itional

stipulations are discussed in the Findings of Fact.

At the hearing, Petitioner presented the testimony of

three witnesses. DOT called one witness, and the District

called two witnesses. Petitioner submitted 15 exhibits for

admission in evidence, and Respondents submitted 11 exhibits.

The identity of the witnesses and exhibits, and any attendant

rulings, are set forth in the Transcript of the hearing filed

on October 23, 2001.

The parties requested additional time to file their

proposed recommende d orders ("PROs") and agreed that 20 days

from the date of the filing of the Transcript would be

sufficient. Petitioner timely filed his PRO on November 9,

2001. Respondents filed their Joint PRO on November 13, 2001.

FINDINGS OF FACT

1. Petitioner ow ns a developed parcel of mixed - use

property in Pinellas County, Florida, known as the U.S. 19

Commerce Center (the "Commerce Center"). The Commerce Center

is proximate to U.S. 19 and is located within the Alligator

Creek Watershed.

2. DOT is the state a gency charged by statute with

responsibility for the construction, maintenance, and

operation of the State Highway System, including U.S. 19. DOT

proposes a highway reconstruction project of a portion of U.S.

19 that is proximate to the Commerce Center an d located within

the Alligator Creek Watershed. DOT seeks the modification

permit from the District in order to complete the highway

reconstruction project.

3. The District is a political subdivision that operates

under the Florida Water Resources Act of 1972, Chapter 373,

Florida Statutes (2001). (All statutory chapter and section

references are to Florida Statutes (2001) unless otherwise

stated.)

4. The District is responsible for regulating, among

other things, environmental resource permittin g in Pinellas

County, including the permitting for any regulated activity

within the Alligator Creek Watershed. The area of concern for

the District in this case involves a sub - basin within the

Watershed that is crossed by several channels and drainage

di tches including those identified by the parties as Channel

A, Channel G, and the "east - west ditch." The channels and

ditches in the sub - basin eventually flow into the ultimate

outfall for the entire basin.

5. On June 21, 1999, the District issued Environ mental

Resource Permit ("ERP") No. 4411760.008. The parties refer to

that permit as the ".008" permit or the "original permit."

Petitioner did not challenge the original permit.

6. The original permit authorized DOT to construct a

surface water manage ment system for anticipated runoff caused

by the reconstruction of U.S. 19 in the vicinity of Drew

Street and the Commerce Center (the "original project"). DOT

designed the original project to collect post development

stormwater runoff, treat the runoff, and discharge it. The

original project included several surface water detention

ponds east of U.S. 19 in the vicinity of the Commerce Center.

The parties identify those ponds as Ponds 4B, 4D1, 4D2, 4E1,

and 4E2.

7. DOT intended to locate Pond 4B on Co mmerce Center

property. However, DOT and Petitioner were unable to agree on

terms, and DOT filed a condemnation action in circuit court

pursuant to DOT's power of eminent domain.

8. DOT withdrew the condemnation action against

Petitioner sometime befo re January 19, 2001. On January 19,

2001, DOT applied to the District for approval of a

modification to the original permit. On June 1, 2001, the

District issued permit modification No. 44011760.010. The

parties refer to this second permit alternatively as either

the ".010" permit or the "modification permit." This second

permit is the modification permit that is at issue in this

proceeding.

9. The modification permit eliminates Pond 4B and

authorizes the addition of Pond 4C to be located on property

t hat is not owned by Petitioner. The modification permit also

combines Ponds 4D1 and 4D2 into Pond 4D, and combines Ponds

4E1 and 4E2 into Pond 4E. In addition, the modification

permit moves the point of discharge in the east - west ditch to

the west closer to U.S. 19 and farther from the Commerce

Center; places 7.72 acre - feet of fill in the 100 - year flood

plain; compensates for the fill by equivalent excavation and

storage modeling; and places impervious liners in two ponds

(the "modified project").

10. T he modified project slows the rate of discharge in

the system and increases water quality treatment. The

modified ponds will have more storage volume, and the

discharge rates from the ponds will be lower. The modified

ponds will peak at hour 12 of a 25 - y ear, 24 - hour storm event.

The modified project will discharge into Channel A and the

east - west ditch.

11. Petitioner challenges the modification permit, in

relevant part, on the ground that DOT does not own the

property required for the modified proje ct and cannot acquire

control of the property through the power of eminent domain.

During the hearing, Petitioner represented that DOT had

previously begun two condemnation actions to acquire property

necessary for the original project but had entered vol untary

dismissals of both actions. Petitioner argued that Florida

Rule of Civil Procedure 1.420 bars DOT from instituting any

future eminent domain actions to obtain control of property

needed for the modified project.

12. The evidence does not reveal th e underlying facts

associated with the condemnation actions referred to by

Petitioner. If Petitioner were to demonstrate the legal

necessity for DOT to acquire control of a portion of Commerce

Center property in order to complete the modified project,

the re would be no evidentiary basis for a finding that the

portion of Commerce Center property required for the modified

project would be identical to that DOT previously sought to

condemn twice in connection with the original project.

13. Petitioner did not demonstrate the legal necessity

for DOT to acquire control of Commerce Center property in

order to complete the modified project. Applicable rules do

not require ownership of property by entities with the power

of eminent domain, including DOT. Rule 40D - 4.101(3).

Ownership is not a condition of issuance but is merely

information that must be included in the permit application.

Rule 40D - 4.101(2).

14. The original ALJ in this case issued a prehearing

order that prohibits Petitioner from challenging DO T's

ownership of the property needed to complete the modified

project. The law of the case established in the prehearing

order, prohibits Petitioner from challenging: the legal right

of DOT to discharge into the east - west ditch; the legal

ownership or con trol of the area of the project where Pond 4E

is to be located; and the legal right to utilize Petitioner’s

stormwater "retention" area.

15. The preponderance of evidence shows that DOT

currently owns all of the property necessary to construct the

modif ied project. Furthermore, the modification permit

specifically provides that DOT cannot begin construction until

DOT owns or controls all property necessary for the modified

project.

16. The District correctly reviewed the application for

the modifica tion permit. The District correctly applied the

design and performance criteria set forth in the Basis of

Review for Environmental Resource Permit Applications (the

"BOR"). The BOR is adopted by reference in the District’s

rules. Rule 40D - 4.091(1) .

17 . The parties entered into several stipulations in

addition to those previously discussed. In relevant part, the

parties stipulated that no special basin criteria apply to the

modified project.

18. The parties also stipulated to the accuracy and

verac ity of the Alligator Creek Watershed Study (the

"Alligator Creek Study"). The Alligator Creek Study is the

only known source of both elevations and timings during

rainfall events for the area surrounding the modified project.

Among other things, the Stud y predicts stormwater levels in

various locations during severe rainfall events. The

predictions are based upon existing drainage capacity within

the Alligator Creek basin and also upon certain assumptions

regarding conditions that exist at the time that a rainfall

event begins.

19. The Alligator Creek Study, for example, predicts a

high water level in Channel A of 23.28 feet at hour 16 during

a 25 - year, 24 - hour storm event. The prediction is based upon

the capacity of the receiving water - body, the cur rent rate at

which surface areas currently discharge into that water - body,

and the assumption that the rainfall event is uniform across

the entire Alligator Creek basin. The Study also assumes mean

high tide at the ultimate outfall of the basin.

20. The stipulations between the parties leave several

issues to be determined. One issue is whether the east - west

ditch is an historical discharge location in the area

surrounding the modified project.

21. The original permit and the modified permit

authoriz e runoff to discharge into two locations. One

location is the east - west ditch, and the other is Channel A.

22. Petitioner claims that the east - west ditch is not an

historical discharge location but is a detention facility

constructed by Petitioner and is Commerce Center property that

DOT cannot utilize in the modified project. In a prehearing

order, the original ALJ in this case prohibited Petitioner

from raising the arguments that the east - west ditch is not an

historic discharge location and that DOT is not legally

allowed to discharge into the ditch. Nevertheless, Petitioner

submitted evidence relevant to the claim that the east - west

ditch is not an historical discharge point.

23. The modified project is located in an open drainage

basin because th e basin does not satisfy the definition of a

closed basin in BOR 1.7.1. Compare BOR 1.7.29. The allowable

discharge for projects in an open basin is the historic

discharge. BOR 4.2.a.1.

24. The District determines historic discharge first by

referenc e to an existing or permitted site. BOR 4.2.a. The

District considers a discharge at a point that has been

permitted by the District to be a legally allowable discharge.

The east - west ditch is a permitted discharge point in the

original permit, and Peti tioner does not challenge the

original permit.

25. The modified project moves the discharge point in

the east - west ditch to the west farther from Commerce Center

property. That change does not alter the determination that

the modified project utilizes an historic discharge point

authorized in the original permit. The discharge point for

the modified project is within a permitted location in the

original permit. In any event, Petitioner failed to show any

adverse impact caused by moving the discharge p oint in the

east - west ditch further west away from the Commerce Center.

26. Putting aside the original permit, Petitioner claims

that the east - west ditch did not historically extend west to

U.S. 19 but was a detention pond required by the City of

Clearwat er as a condition of approval for the original

development of the Commerce Center. The District looks back

in time until 1984 to determine historic discharges. The

historical drainage flow patterns for the locale of the

modified project were in existence as early as 1971. The

preponderance of evidence shows water flowing in the

historical drainage pattern to the area of the east - west

ditch.

27. Prior to 1984, Petitioner excavated the east - west

ditch to further enhance the drainage flow pattern. This is

the drainage flow pattern that exists at the project location

today.

28. Another issue left unresolved by the stipulations

between the parties is whether DOT provided reasonable

assurances that the modified project will not cause adverse

water quantity i mpacts to receiving waters and adjacent lands

in accordance with the requirements of Rule 40D - 4.301(1)(a).

The appropriate standard for determining water quantity

impacts for the modified project is the peak rate of runoff,

rather than the volume of runof f. Compare BOR 4.2.a (defining

allowable discharge in an open basin by reference to peak

rates) with BOR 4.2.c (defining allowable discharge in a

closed basin by reference to volume). Petitioner stipulated

that there are no special basin criteria associa ted with the

modified project, and Petitioner did not challenge the

validity of the District's rules including those that measure

water quantity impacts by peak rates of discharge.

29. The District required DOT to calculate pre -

development and post - develo pment rates of runoff based on the

District’s 24 - hour, 25 - year rainfall maps and the Soil

Conservation Service’s type II Florida Modified 24 - hour

rainfall distribution. BOR 4.2.b. The data utilized by DOT

are based on the assumption that rainfall will o ccur

simultaneously over the entire basin. The assumption supports

calculations based on a greater quantity of rainfall over the

entire basin than would occur if it were assumed that rainfall

began in a portion of the basin and then proceeded to cover

the entire basin.

30. DOT provided reasonable assurances that post -

development discharge rates in the modified project will not

exceed pre - development rates. Post - development discharge

rates for the east - west ditch and for Channel A are 50.7 and

13.5 cubic feet per second ("cfs"), respectively. The

respective pre - development discharge rates for the east - west

ditch and Channel A are 62.7 and 29.5 cfs. Moreover, the

post - development rates of discharge for the modified project

are less than those for the orig inal project.

31. The area surrounding the modified project is flood -

prone. Petitioner claims that the District should have

reviewed the modified project for volume of runoff as well as

rates of discharge.

32. District rules require the Dist rict to consider

volume in closed basins but authorize the District to consider

only rates of discharge in open basins, such as the Alligator

Creek basin, unless otherwise specified. The only specified

exception is for the Delaney Creek basin. While some open

drainage basins can be flood - prone and volume - sensitive,

District rules do not distinguish between open basins that

either are or are not flood - prone. The District cannot

deviate from a valid existing rule. Section 120.68(7)(e)2.

The exercise of agency discretion that considered rates of

discharge rather than volume was consistent with applicable

rules and prior agency policy.

33. The evidence does not show any prejudice to

Petitioner from the failure to consider volume. Petitioner

failed to s how that the amount of annual volume would increase

once the modified project is completed.

34. Aside from volume, other District rules prohibit

projects that cause adverse flooding to the property of

others. Rule 40D - 4.301(1)(b), in relevant part, req uires DOT

to provide reasonable assurances that the modified project

will not cause adverse flooding to on - site or off - site

property. Rule 40D - 4.302(1)(a)1, in relevant part, requires

the District to consider a system’s effect on the property of

others.

35. The District measures the potential for flooding, in

relevant part, by encroachment into the 100 - year flood plain.

District rules permit no net encroachment into the 100 - year

flood plain. However, the rules do allow for encroachment

into the 100 - year flood plain if the encroachment is offset.

36. The modified project encroaches into 7.72 acre - feet

of flood plain. As partial compensation for the loss, DOT

provides 2.46 acre - feet of equivalent excavation. DOT

compensates for the remaining 5.26 acre - feet of encroachment

by storage modeling.

37. Storage modeling consists of computer models that

demonstrate how the ponds in the modified project will

accommodate expected stormwater runoff from a 100 - year, 24 -

hour rainfall event. The storage mo deling assesses the

storage capacity of the ponds on the basis of rainfall and

tailwater. Tailwater is a downstream water condition that can

be measured in terms of elevation, i.e. , stage; and in terms

of time, i.e. , the hour in which a particular stage o ccurs.

38. DOT's storage modeling demonstrates that the ponds

in the modified project will first drain downstream and then

fill from backflow that occurs as tailwater stages increase.

DOT provided the storage modeling compensation in Pond 4E by

design ing it to take in backflow from the east - west ditch and

Channel A during a 100 - year storm event. The increased

backflow capacity of Pond 4E provides the additional storage

necessary to preclude any net encroachment into the 100 - year

flood plain.

39. T he storage modeling by DOT demonstrates that the

modified project will not exceed the high water levels

established in the Alligator Creek Study for a 100 - year storm

event. The storage modeling and the equivalent excavation

provide reasonable assurances t hat the modified project will

not cause adverse flooding to on - site or off - site property;

and will not adversely affect the public health, safety, or

welfare or the property of others.

40. The storage modeling complies with the requirements

of in BOR 7. 7.3 for the District to review variable tailwater

stages if they have a significant influence on the project

design. The District considered the impact of the modified

project on variable tailwater conditions based on data

utilized for the Alligator Creek Study.

41. Data utilized in the Alligator Creek Study are based

on the assumption that rainfall during a 24 - hour rainfall

event will occur simultaneously over the entire basin. The

assumption does not take into account 24 - hour rainfall events

that begi n downstream from the modified project and increase

tailwater stages before the ponds in the modified project can

drain sufficiently to accommodate backflow from the increased

tailwater stages.

42. Petitioner's expert opined that the modified project

co uld cause flooding of Commerce Center property if: the

tailwater stage downstream from the modified project were

higher than that assumed in the study; and a rainfall event

started downstream in the Alligator Creek basin and moved

across the basin toward t he modified project. The expert

determined that the earlier increase in tailwater stages could

cause the peak runoff from the storm at approximately hour 12

to coincide with peak high tailwater stages. The expert

opined that the coincidence of high water level in Channel A

and the east - west ditch during the time of peak runoff from

DOT's drainage system could overload Channel A and the east -

west ditch and cause flooding on Commerce Center property.

43. The opinion of Petitioner's expert was reasonable

a nd credible as far as it goes. However, the expert opinion

was not persuasive. Although the opinion was supported by

underlying facts or data sufficient for admissibility, within

the meaning of Section 90.705, the underlying facts and data

were not persu asive.

44. The underlying facts and data consisted of some

information from two storms identified as: a three - year storm

on July 15, 2001; and Tropical Storm Gabrielle on

September 14, 2001. Petitioner's expert assumed a set of

circumstances under w hich he opined that the modified project

would fail but did not support the assumption with persuasive

evidence. Information from the two storms relied on by the

expert does not outweigh the modeling done by DOT based upon

the Alligator Creek Study, the D istrict’s 25 - year design storm

event, and other relevant District criteria. Petitioner did

not submit a model different from that submitted by DOT and

did not submit any evidence that the storage modeling

presented by DOT was incorrect.

45. The facts an d data underlying the expert opinion are

flawed for other reasons. The expert opinion utilizes numbers

for the high tailwater mark in a 25 - year design storm that

were calculated in the Alligator Creek Study. Those numbers

are based upon uniform rainfall across the basin.

46. If rainfall does not occur simultaneously over the

entire basin, the water draining into the basin will be less

than that assumed in the Alligator Creek Study for a 25 - year

design storm. In a 25 - year storm in which rainfall does n ot

occur simultaneously over the entire basin, the high water

level in Channel A will not be 23.28 feet, as shown in the

Alligator Creek Study, but will be some unknown lesser

elevation. If rain does not fall uniformly across the entire

basin, the peak ho ur of runoff from the modified project may

not occur at hour 12, and the high water level in Channel A

may not occur at hour 16.

47. The tailwater condition assumed in the Alligator

Creek Study and the timing of that tailwater condition are

both consiste nt with a simultaneous, across - the - basin rainfall

event of 8 - 9 inches over a 24 - hour period. In order to move

the start of the tailwater condition, it would be necessary to

recalculate the expected high tailwater conditions based upon

rainfall occurring a t different times throughout the basin.

If a rainfall event is not uniform across the basin, the

tailwater data underlying the expert opinion would decrease.

48. The design - storm underlying the expert opinion would

produce a storm surge of such magnitude that it would likely

flood 75 percent of Pinellas County. The resulting storm

surge or high tide would be much larger than the rainfall from

a 100 - year storm.

49. Rule 40D - 4.301(1)(c) requires DOT to provide

reasonable assurances that the modified project will not cause

adverse impacts to existing surface water storage and

conveyance capabilities. Petitioner claims that the east - west

ditch is either a detention or retention pond, within the

meaning of BOR 1.7.5 or 34, and that the modified project will

adversely affect the pond by discharging into it. The

original ALJ established the law of the case in an Order on

Motion to Strike that precludes Petitioner from raising this

issue.

50. Nevertheless, Petitioner claims that the east - west

ditch is eit her a detention or retention pond. No part of the

east - west ditch, including that part widened by Petitioner in

1984, is a detention or retention pond within the meaning of

BOR 1.7.5 and 34.

51. The post - development runoff rate into the east - west

ditch from the modified project will be less than both the

pre - development run - off rate and that rate previously

authorized in the original permit. The post - development

runoff rate from the modified project will not adversely

affect any storage capabilities in herent in the ditch. DOT

provided reasonable assurances that the modified project will

not cause adverse impacts to existing surface water surface

storage and conveyance capabilities.

52. Rule 40D - 4.301(1)(e) requires DOT to provide

reasonable assurances that the modified project will not

adversely affect the quality of receiving waters. The

modified project will utilize wet detention ponds to provide

water quality treatment. BOR 5.2.a requires wet detention

ponds to treat the first inch of runoff; inc lude a minimum of

35 percent littoral zone; and discharge the system’s treatment

volume in no less than five days, with no more than one - half

of the total volume being discharged within 2.5 days.

53. The wet detention ponds in the modified project

pro vide adequate water quality treatment by allowing

stormwater to be stored in each pond for five days and by

allowing sediments to settle on the bottom of the pond.

Vegetation will occur within the ponds and provide for the

uptake of the nutrients in the w ater. Skimmers will retain

oils and greases in the pond. The ponds in the modified

project will hold more water for a longer time than those in

the original permit. DOT provided reasonable assurances that

the modified project will not adversely affect t he quality of

receiving waters in accordance with the criteria in BOR 5.2.a.

54. Petitioner's expert opined that water quality would

be less than that required by District rules if the

hypothetical events described in paragraphs 42 and 44 were to

occur. However, Petitioner failed to provide persuasive

underlying facts or data to support the expert opinion.

55. BOR 5.2.a requires water treatment for only the

first one inch of runoff because that is where oils and

greases are located. The remaining run off during a 25 - year,

24 - hour storm does not require water quality treatment.

56. Rule 40D - 4.301(1)(g) requires DOT to provide

reasonable assurances that the modified project will not

adversely impact the maintenance of surface or groundwater

levels or s urface water flows established pursuant to Section

373.042. DOT satisfied the requirements of the rule by

showing that during a 100 - year storm event, the modified

project will preserve off - site water levels.

57. Rule 40D - 4.301(1)(i) requires DOT to provi de

reasonable assurances that the modified project is capable,

based on generally accepted engineering and scientific

principles, of being effectively performed and of functioning

as proposed. DOT satisfied the requirements of the rule. The

relevant evid ence provided by DOT is based on the Alligator

Creek Study. The Study is accepted in the engineering field

as accurate, and the parties stipulated to the accuracy and

veracity of the information contained in the Study.

58. The modified project meets t he conditions for permit

issuance in Rules 40D - 4.301 and 40D - 4.302. The proposed

project is located in a right - of - way dedicated for public

highway purpose as required by Rule 40D - 40.302(3)(a).

59. The modified project will not drain lands outside of

th e jurisdiction of DOT within the meaning of Rule 40D -

40.302(3)(b)1. The modified project will not lower the dry

season groundwater table outside of the project area within

the meaning of Rule 40D - 40.302(3)(b)2. The modified project

will not lower groundw ater tables where doing so would

adversely affect existing legal users. BOR 4.6.4.

60. The wet detention ponds in the modified project will

be lined with an impermeable plastic liner which will

"isolate" the stormwater from the adjacent groundwater tabl e,

will prevent the lowering of that table, and will preserve the

water table as is. After installation of the liners, the

water table will rise for approximately 30 days and then

return to the pre - liner level. The modified project will not

lower the gro undwater table outside of the project area.

CONCLUSIONS OF LAW

61. DOAH has jurisdiction over the parties and the

subject matter of this proceeding. Sections 120.569(1) and

120.57(1). DOT has the burden of proof in this proceeding.

Florida Departmen t of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). DOT must, by a

preponderance of the evidence, make a prima facie showing that

the modified project satisfies relevant requirements for

issuance of the modified permit. J.W.C . , 396 So. 2d at 787 -

788. If DOT makes a prima facie showing of reasonable

assurances, the burden of going forward with the proof shifts

to Petitioner to present evidence of equivalent quality that

is sufficient to refute the prima facie showing by DOT.

J.W.C. , 396 So. 2d at 789.

62. A determination of whether DOT has provided

reasonable assurances is limited to a review of those portions

of the modified project that are different from the original

project. The time for challenging the original permit passed

before Petitioner petitioned for an administrative hearing.

63. The parties stipulated that the modified project

satisfies the requirements of Rule 40D - 4.301(1)(d), (f), (h),

(j), and (k). Rule 40D - 4.301(1)(a) - (c), (e), (g), and (i)

requires DOT to provide reasonable assurance that the modified

project:

(a) will not cause adverse water quantity

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to on -

site or off - site property;

(c) will not cause adverse impac ts to

existing surface water storage and

conveyance capabilities;

(e) will not adversely affect the quality

of receiving waters such that the water

quality standards set forth in chapters 62 -

3, 62 - 4, 62 - 302, 62 - 520, 62 - 522 and 62 - 550,

F.A.C. , including a ny antidegradation

provisions of sections 62 - 4.242(1)(a) and

(b), 62 - 4.242(2) and (3), and 62 - 302.300,

F.A.C. , and any special standards for

Outstanding Florida Waters and Outstanding

National Resource Waters set forth in

sections 62 - 4.242(2) and (3), F.A. C., will

not be violated;

(g) will not adversely impact the

maintenance of surface or groundwater

levels or surface water flows established

pursuant to Chapter 373.042, F.S.; [and]

(i) is capable, based on generally

accepted engineering and scientific

principles, of being effectively performed

and of functioning as proposed. . . .

64. Rule 40D - 4.302 provides additional conditions for

issuance of the modified permit. For surface water management

systems located in, on, or over wetlands or other surf ace

waters, DOT must show that the modified project is not

contrary to the public interest. Rule 40D - 4.302(1)(a).

65. Rule 40D - 40.302(3) provides additional conditions of

issuance for standard general environmental resource permits

for public highway pro jects. Rule 40D - 40.302(3) provides:

(a) The public highway project must be

located within a right of way dedicated to

the public for highway purposes.

(b) The public highway project must not:

1. Drain lands outside the jurisdiction of

the constru cting or funding public body;

2. Lower or have the potential for

lowering the dry season groundwater table

outside of the project’s design drainage

area; and

3. Interfere with natural drainage

patterns or flows.

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

The s tandards and criteria contained in the

Basis of Review for Environmental Resource

Permit Applications shall determine whether

the reasonable assurances required by

subsection 40D - 4.301(1) and Section 40D -

4.302, F.A.C. , have been provided.

67. Petitioner alleges that the modification permit

should be denied because DOT lost the right to obtain

ownership through its power of eminent domain. The argument

is based on the two - dismissal rule found in Florida Rules of

Civil Procedure Rule 1.420(a)(1), and the a llegation that DOT

has voluntarily dismissed two eminent domain actions.

68. If Rule 1.420(a)(1) were applicable, the rule would

treat the second voluntary dismissal as an adjudication on the

merits. The judicial doctrine of res judicata , rather than

R ule 1.420(a)(1), would bar subsequent suits. See Olympia

Mortgage Corp., v. Pugh , 774 So. 2d 863 (Fla. 4th DCA 2000).

In order to determine the applicability of Rule 1.420(a)(1), a

court must review the underlying facts of each case previously

dismissed. Olympia Mortgage , 774 So. 2d at 866; Edmondson v.

Green , 755 So. 2d 701 (Fla. 4th DCA 1999); Scutieri v. Tew,

Spittler, Berger & Bluestein, P.A. , 674 So. 2d 803 (Fla. 3rd

DCA 1996). Petitioner did not submit evidence sufficient for

a review of the unde rlying facts of the previous cases.

69. Rule 40D - 4.101 addresses the necessary contents for

environmental resource permit applications. Rule 40D - 4.101(3)

provides, in pertinent part:

Notwithstanding the provisions of

subsection (2), persons authorize d by

entities with the power of eminent domain

may sign the application in lieu of the

owner when applying on behalf of the entity

. . . .

Petitioner presented no evidence showing that the signature on

the application was deficient. Nothing in Rules 40 D - 4.301 and

40D - 4.302 require ownership or the power of eminent domain as

a condition for issuance of an environmental resource permit.

70. The BOR addresses the issue of whether volume is a

consideration in open drainage basins. BOR 4.2 states:

a. For a project or portion of a project

located within an open drainage basin, the

allowable discharge is:

1. historic discharge, which is the peak

rate at which runoff leaves a parcel of

land by gravity under existing site

conditions, or the legally allowab le

discharge at the time of permit

application; or

2. amounts determined in previous District

permit actions.

b. Unless otherwise specified, off - site

discharges for the existing and developed

conditions shall be computed using the

Southwest Florida Wa ter Management

District’s 24 - hour, 25 - year rainfall maps

and the Soil Conservation Service’s type II

Florida Modified 24 - hour rainfall

distribution with an antecedent moisture

condition II.

c. For a project or portion of a project

located within a closed drainage basin, the

required retention volume shall be post -

development runoff volume less the pre -

development volume computed using the

Southwest Florida Water Management

District’s 24 - hour/100 - year rainfall map

and the Soil Conservation Services type II

Florida Modified 24 - hour rainfall

distribution with an antecedent moisture

condition II. The total post - development

volume leaving the site shall be no more

than the total pre - development volume

leaving the site for the design 100 - year

storm. The rate o f runoff leaving the site

shall not cause adverse off - site impacts.

Maintenance of pre - development off - site low

flow may be required in hydrologically

sensitive areas.

71. DOT demonstrated that the modified project satisfies

relevant criteria in BOR 4. 2. The allowable discharge for the

modified project is set by the original permit, a previous

District permit action. The discharge rate from the modified

project will be less than the rate authorized in the original

project. Therefore, DOT satisfies th e criteria in BOR 4.2a.

72. DOT performed the modeling for determining the rate

of discharge for the modified project and the impacts on

downstream property by utilizing data from the District’s 24 -

hour, 25 - year rainfall maps and the Soil Conservation

Ser vice’s type II Florida Modified 24 - hour rainfall

distribution with an antecedent moisture condition II. The

Alligator Creek Study used the District’s 25 - year design storm

as the basis for its findings, and the DOT relied on the

Alligator Creek Study for D OT's modeling. DOT satisfied the

criteria in BOR 4.2b.

73. Petitioner’s objections regarding these criteria are

two - fold. First, Petitioner believes that volume of discharge

should be considered on the ground that the Alligator Creek

basin is in a flood - prone area. Second, Petitioner believes

that the off - site discharges should be computed using

assumptions not contained in BOR 4.2b.

74. The first objection fails to address the fact that

the original permit authorizes discharge rates that are

greater t han those authorized in the modification permit. In

effect, Petitioner's argument attempts to reopen the original

permit and attack the District's prior decision. The

discharge rate for the modified project does not exceed that

of the original project.

7 5. Even if the first permit were not binding, the BOR

distinguishes between closed drainage basins and open drainage

basins. Volume of discharge is considered in the former but

not in the latter. The only exception to this rule is another

rule which set s out special criteria for one open drainage

basin, the Delaney Creek basin. The parties stipulated that

no special criteria apply to the Alligator Creek basin, and

there is no legal authority to consider volume of discharge in

the open basin at issue in this proceeding. The District

cannot deviate from a valid existing rule. Section

120.68(7)(e)2.

76. DOT presented a prima facie case that it has

provided the reasonable assurances necessary to obtain

Standard General Environmental Resource Permit No.

44011760.010. Petitioner failed to present sufficient

evidence of equivalent quality showing that DOT is not

entitled to the permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is therefore

RECOMMENDED that the South west Florida Water Management

District enter a final order approving the application of the

Florida Department of Transportation for Standard General

Environmental Resource Permit No. 44011760.010.

RECOMMENDATION

DONE AND ENTERED this 17th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 2001.

COPIES FURNISHED :

Robert C. Downie, II, Esquire

Department of Transportation

605 Suwannee Street

Hay don Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

James A. Helinger, Jr., Esquire

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

814 Chestnut Street

Clearwater, Florida 33756

Christine C. Stretsky, Esquire

Mark F. Lapp, Esquire

Southwest Florida Wat er Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

Teri L. Donaldson, General Counsel

Departme nt of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Pamela Leslie, General Counsel

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.