21-000432 Ned Bowers vs. Orange County, A Political Subdivision Of The State Of Florida And The St. Johns River Water Management District Status: Closed Recommended Order on Monday, July 19, 2021.

Summary: Orange County is entitled to issuance of an ERP for the Lake Ola Circle Drainage Improvements.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

N ED B OWERS ,

Petitioner ,

VS . C ASE N O . 21 - 0432

O RANGE C OUNTY , A P OLITICAL

S UBDIVISION OF THE S TATE OF F LORIDA

A ND S T . J OHNS R IVER W ATER

M ANAGEMENT D ISTRICT ,

Respondents.

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearin g was held in this case on May 10

through 13 , 2021 , by Zoom conference before E. Gary Early, a designated

A dministrative L aw J udge of the Division of Administrative Hearings

(ÑDOAHÒ) .

A PPEARANCES

For Petitioner Ned Bowers :

Keith L. Williams, Esquire

Keith L. Williams Law, PLLC

101 Canterbury Drive West

West Palm Beach , Florida 33407

For Respondent Orange County, Florida:

Linda S. Brehmer - Lanosa, Esquire

Orange County AttorneyÔs Office

201 South Rosalind Avenue, Third Floor

Orlando, Florida 32 801

F or Respondent S t. Johns River Water Management District :

Sharon M. Wyskiel, Esquire

Erin H. Preston, Esquire

Steven J. Kahn, Esquire

Jessica Pierce Quiggle, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka , Florida 3 2177

S TATEMENT OF T HE I SSUE

The issue to be determined is whether the proposed construction and

operation of an outfall drainage improvement project for a 0.167 - acre project

known as Lake Ola Circle Outfall Drainage Improvements meet s the criteria

in Florida Administrative Code Rule s 62 - 330. 301(1) and 62 - 330.302(1), and

the ApplicantÔs Handbook (ÑA.H.Ò) for issuance of an Environmental Resource

Permit .

P RELIMINARY S TATEMENT

On December 1 8 , 20 20 , the St. Johns River Water Management District

( ÑSJRWMDÒ or ÑDistrictÒ) entered a notice of its intent to issue

Environmental Resource Permit ( Ñ ERP Ò ) No. 154996 - 2 (ÑPermitÒ) , to

Respondent, Orange County, Florida (Ñ Orange CountyÒ) , for the proposed

construction and operation of an outfall drainage improvement project for a

0.167 - acre project known as Lake Ola Circle Outfall Drainage Improvements ,

and the related construction of an upgradient rock check dam in a swale

along the north side of Lake Ola Drive (ÑProjectÒ) .

On February 3, 2021 , Ned Bowers (ÑPetitionerÒ or Ñ Mr. Bowers Ò) filed his

Petition for Administrative Hearing Involving Disputed Issues of Material

Fact Re: Permit No. 154996 - 2 (ÑPetitionÒ) challenging the Permit , which was

refer r ed to DOAH and assigned as DOAH Case No. 2 1 - 0432 .

The f inal hearing was scheduled for May 10 through 14, 2021, by Zoom

conference.

Prior to the final hearing, the parties file d a number of Motions in Limine

seeking to exclude issues and evidence from consideration by the

undersigned, disposition of which are contained in the docket.

On May 5, 2021, Petitioner filed a Motion in Limine to Exclude

Engineering Plans or Reports Sign ed and Sealed by Benjamin Pernezny,

P.E. , on May 3, 2021 (ÑPernezny MotionÒ) . The District filed a Response on

May 6, 2021. The basis for the Pernezny Motion was, generally, that

engineering plans had been signed by an engineer -- retained by Orange

County as the engineer - of - record for the Permit application and as an expert

witness in this case -- after the April 30, 2021 , deadline for experts to have

formulated their opinions. On May 7, 2021, the Pernezny Motion was denied

without prejudice to raise issue s of admissibility of evidence at the final

hearing.

Among the more inflammatory allegations made in the Pernezny Motion

was the suggestion by Petitioner that Mr. PerneznyÔs actions were violative of

his professional standards of conduct, which Ñsubjects him to disciplinary

action.Ò As a result of that allegation, Brian Bennett, Esquire , made a special

appearance on behalf of Mr. Pernezny, and was allowed to participate in the

discussion of Mr. PerneznyÔs participation as a witness in this proceeding.

At the final hearing, evidence was received that the prior engineer - of -

record for the Permit application had retired . As a result, the District

requested Mr. Pernezny, as the successor engineer, to sign the Permit

application, which was done on May 3, 2021 . The evidence demonstrated

that, but for Mr. PerneznyÔs signature, the Permit application was

unchanged. The evidence also demonstrated that Petitioner was made aware

that Mr. Pernezny was assuming responsibility as engineer - of - record by

letter dated Apri l 14, 2021, well prior to Mr. PerneznyÔs deposition, and that

Mr. Pernezny had fully formed his opinions regarding the P roject prior to his

deposition.

Having heard the evidence and reviewed the relevant provisions of

chapter 471, Florida Statutes, inclu ding , but not limited to , section

471.025(4), the undersigned finds that Mr. PerneznyÔs act of signing the

Permit application documents did not make either the documents or his

testimony unreliable. The act of affixing a signature to plans is not the

forma tion of an Ñopinion,Ò and so doing did not violate the provisions of the

Order of Pre - hearing Instructions regarding expert opinions. Therefore, the

Motion in Limine to Exclude Engineering Plans or Reports Signed and Sealed

by Benjamin Pernezny, P.E. on Ma y 3, 2021, is denied.

On May 7, 2021, after the initial denial of the Pernezny Motion,

Respondent, Orange County, filed a Notice of Improper Purpose under

Section 120.569(2)(e), Fla. Stat., arguing, inter alia , that Petitioner made

Ñscandalous and baseless accusations against Orange CountyÔs expert

witnesses for the purpose of harassing and intimidating the witnesses, which

purposes are improper.Ò The undersigned agrees that the language used in

the Pernezny Motion was, at best, improvident ; h owever, under the

circumstances, which are unusual, it was not unreasonable for Petitioner to

conclude that the signing of the Permit application documents violated the

Order of Pre - hearing Instructions. PetitionerÔs unn ecessarily inflammatory

language notwithstanding, the undersigned does not conclude that the

Pernezny Motion was Ñinterposed for any improper purposes, such as to

harass or to cause unnecessary delay, or for frivolous purpose or needless

increase in the co st of litigation.Ò Thus, Orange CountyÔs Notice of Improper

Purpose under Section 120.569(2)(e), Fla. Stat. , is denied.

On May 10 , 2021 , the parties filed their Joint Pre - hearing Stipulation

(ÑJPSÒ) . The J PS contained two stipulations of fact , which are adopted and

incorporated herein . The JPS also identified disputed issues of fact and law

remaining for disposition .

T he final hearing was convened on May 10, 202 1 , as scheduled.

The Permit was approved under the authority of chapter 373 , Florida

Statutes , and the modified burden of proof established in

section 120.569(2)(p) , Florida Statutes , is applicable . Under that burden of

proof, an applicant for a permit may establish its prima facie case of

entitlement to a permit Ñby entering into evidence the application and

relevant material submitted to the agency in support of the application, and

the agencyÔs sta ff report or notice of intent to approve the permit.Ò At t hat

point, the burden of ultimate persuasion is on Petitioner to prove his case in

opposition to the p ermit by a preponderance of the competent and substantial

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

assurance that the standards for issuance of the p ermit were met. Thereafter,

the applicant and agency may present evidence on rebuttal to demonstrate

that the application meets the conditions for issuance.

At the fi nal hearing , Respondent, Orange County, offered Joint Exhibits 1

through 32, consisting of the Permit application and the DistrictÔ s Technical

Staff Report (ÑTSRÒ) and proposed Permit, which were receiv ed in evidence,

and which established a prima facie case of entitlement for the Permit.

Orange County also presented the testimony of Maricela Torres, and rested

its initial case in chief.

Petitioner presented the testimony of Kimberly Buchheit, R.L.S., who

possessed the knowledge , skill, education, trainin g , and experience to offer

testimony as an expert in surveying; and Daniel Morris, P.E., who possessed

the knowledge , skill, education, training , and experience to offer testimony as

an expert in engineering . Petitioner also presented the testimony of Davi d

Russell, who possessed a degree of knowledge , skill, education, training , and

experience in engineering , though his background was primarily in chemical ,

industrial, and municipal engineering, with experience in remediation,

industrial safety, and wastew ater treatment , none of which are pertinent to

the issues in this case . He is no t a licensed Florida Professional Engineer. His

only knowledge of Florida stormwater rules was that gained in conjunction

with his preparation for testifying in this hearing. H e was no t familiar with

the A.H. Questioning by PetitionerÔs counsel and on voir dire elicited no

indication of any knowledge , skill, education, training , and experience in

water quality or stormwater modeling, and he was, by admission, Ñnot a

wetlands expert . Ò For those reasons, Mr. RussellÔs testimony regarding the

District Ôs stormwater regulatory standards, water quality, stormwater

modeling, and wetlands has been given little weight. PetitionerÔs Exhibits 1,

37, 38, 47, 48 (minus editorial notations) , 50 through 54, 64 (pages 1

through 11), 66 (minus editorial notations), 69 (pages 3 through 6), 71, 91,

and 98 were received in evidence. PetitionersÔ Exhibits 31 through 33, and 43

were proffered, but not received in evidence , and accompany the record .

In rebuttal, Orange County presented the testimony of Benjamin

Pernezny, P.E., who was proffered and accepted as an expert in water

resources engineering and stormwater management; Julie Bortles, who was

proffered and accepted as an expert in water quality testing and analysis;

and Brian Mack, P.E., who was proffered and accepted as an expert in water

resources engineering, inclu ding stormwater modeling and hydrology. Orange

CountyÔs Exhibits 02 - 3, 10 - 1, 10 - 3 through 10 - 7, 10 - 9, 12 - 1, 12 - 2, 16 - 1, 16 - 2,

18, 19 - 1, 29 - 2, 35, 44, 47 (page 2), 62 (which includes Orange County

Exhibit 46 as an attachment) , and 65 were received in eviden ce. In addition,

Orange County Exhibits 54 and 55 were accepted solely for the purpose of

ruling on Orange CountyÔs Notice of Improper Purpose under Section

120.569(2)(e), Fla. Stat. , discussed above, and not as substantive evidentiary

exhibit s . Orange Cou nty Exhibit 19 - 2 was proffered, but not received in

evidence , and accompanies the record .

In rebuttal, the District presented the testimony of Nicole Martin, who

was proffered and accepted as an expert in wetland and wildlife ecology; and

Cameron Dewey, P .E., who was proffered and accepted as an expert in water

resources engineering. SJRWMD Exhibits 1 through 4 and 12 were received

in evidence.

A four - volume Transcript of the final hearing was filed on June 8 , 2021 .

The parties requested 3 0 days from the filing of the Transcript to file their

post - hearing submittals. The District and Orange County timely filed their

P roposed Recommended Orders (ÑPROÒ) on July 8, 2021 , and e ach h as been

considered in the preparation of this Recommended Order . On July 12, 2021,

Petitioner filed his P RO . No motion for an extension of time to file

PetitionerÔs P RO was filed , either prior to the July 8, 2021, PRO filing date or

otherwise, as is required by Florida Administrative Code Rule 28 - 106.204(4).

Nonethele ss, PetitionerÔs PRO has been considered.

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

Permit application being operative, references to statutes are to their current

versions , unless otherwise noted . Lavernia v. DepÔt of Pr ofÔl 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 . Mr. Bowers resides at 7400 Lake Ola Circle, Tangerine , Florida . Th e

property fronts Lake Ola. PetitionerÔs homesite includes Lots 1 and 2 of Block

8 in the Tangerine Terrace subdivision; the east 30 feet of a vacated street on

its western side; and part of a vacated park south of Lots 1 and 2. The

Tangerine Terrace subdivision was originally platte d in 1926.

2 . The District is a special taxing district created by chapter 373, and is

authorized by sections 373.413, 373.414, and 373.416 to administer and

enforce the ERP requirements for the management and storage of surface

waters. The District has implemented these statutes, in pertinent part,

through chapter 62 - 330. The District is the permitting authority in this

proceeding and issued the Permit to Orange C o unty .

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

County is the applicant for the Permit, the activities authorized by which are,

except for the rock check dam on Lake Ola B oulevard, to be constructed on a

drainage easement in its favor over the eastern 20 feet of PetitionerÔs

property.

Existing Conditions

4. Lake Ola is a freshwater lake located south of Mount Dora, Florida.

Lake Ola is connected to Lake Carlton via a culvert passing underneath Dora

Drive. Lake Ola is not designated as an impaired waterbody, an Outstanding

Florida Water, or an Outstanding National Resource Water.

5 . Tangerine Terrace is a rural residential area on the north side of Lake

Ola. The main road serving the subdivision, Lake Ola Boulevard, has been in

existence since the 1940s.

6 . The stormwater management system that currently d rains to the

outfall on Mr. BowersÔ s property serves a catchment area of eight drainage

sub - basins with a combined area of approximately 46.3 acres (collectively the

Ñcatchment areaÒ) . The area is rural - residential in nature, consisting of

relatively large residential homesites, and wooded and agricultural areas.

7 . The soils in the catchment area consist of Type - A soils as described by

the U.S. Department of Agriculture. Such soils are sandy and pervious in

nature. Homes, driveways, and roads in the area are impervious.

8 . Stormwater from the catchment area generally flows south to Lake Ola

Boulevard, where it is intercepted by the Lake Ola Boulevard roadside

swales. There is a culvert crossing from the north side to the south side of

Lake Ola Boulevard, the Cooper Cross - drain, that was installed at or near

the time that the road was first constructed. The evidence was not sufficient

to determine whether water flows from the south side of the drain to the

north, or from the north side to the south . For pur poses of this case, that

determination is unnecessary.

9 . Stormwater from the upland basi ns flows along the Lake Ola Boulevard

swales to a point at or near the driveway of the Holstrom property, across the

road from the western leg of Lake Ola Circle. At t hat point, stormwater

enters into a 15 - inch diameter High Density Polyethylene (HDPE) pipe that

is 407 feet in length. The best evidence indicates that the pipe was installed

by Orange County in 2010. 1 Stormwater then is directed under Lake Ola

Boulevard to a ditch (with one driveway culvert) running along the east side

of the eastern leg of Lake Ola Circle. From the re , a 15 - inch diameter HDPE

1 The permitting status of the pipe is unknown. In any event, there is no evidence that the

pipe is the subject of any governmental enforcement or compliance action, and no evidence of

a citizen suit for injunctive relief regarding the pipe.

pipe carries stormwater to the northeast corner of Mr. Bower sÔ s property, and

the northern end of the drainage easement.

10 . Existing stormwater discharge /outfall facilities on property owned by

Petitioner and by the adjoining landowner to the east, Mr. Bloodworth ,

consist of a portion of the buried 15 - inch HDPE pipe which empties into an

upland asphalt - lined swale running between the two properties . The asphalt -

lined swale has, by appearance, accumulated sufficient sediment to support

lawn grasses. Water discharged from the southern terminus of the swale

flows overland to Lake Ola.

11 . Wetlands, as evidenced by hydric, organic soils, exist near the end of

the existing asphalt - lined swale. The wetlands within the Project area have

been mowed and maintained as a residenti al St. Augustine grass lawn. There

is some scattered hydrocotyle (dollarweed) that has come up through the

St. A ugustine grass, though the wetland delineation was determined through

the hydric soils, rather than wetland vegetative species. The preponderanc e

of the evidence demonstrates that the wetland delineation was appropriate

and consistent with the best evidence, that being wetland soils. There is a

wetland scrub community along the shoreline of Lake Ola that is outside of

the Project boundary, but wit hin the easement limits.

Proposed Project

12 . Orange County proposes to replace a 22 - foot segment of the existing

buried 15 - inch HDPE pipe and the existing asphalt - lined swale, with an

underground 18 - inch concrete drainage outfall pipe with a shallow surface

swale , three ditch bottom inlets , and a baffled endwall . The remaining 15 - foot

segment of the 15 - inch HDPE pipe will connect to the first of the ditch bottom

inlets and discharge to the 18 - inch culvert.

13 . At the point at which it connects to the 15 - inch pipe at the first ditch

bottom inlet, the 18 - inch pipe will be eight feet west of the centerline of the

existing asphalt - lined swale. At its outfall at the baffled endwall, the 18 - inch

pipe will be 14 feet w est of the centerline of the existing asphalt - lined swale.

14 . The 18 - inch outfall pipe and baffled endwall are to be installed

entirely within a drainage easement 20 feet in width along the eastern edge

of Mr. BowersÔ s property. Mr. Bowers owns the underl ying servient fee

interest. Orange County introduced competent substantial evidence in the

form of recorded easements and surveys to establish its prima facie case that

it has a sufficient real property interest over the land upon which the

activities subj ect to the Permit application will be conducted. The evidence

submitted by Petitioner was not sufficient to establish that Orange County

was proposing to construct the drainage improvements outside of the

boundary of the easement. However, as will be discu ssed in the Conclusions

of Law, the proposed P ermit conveys no title, and affects no real property

interests . D isputes over the scope, extent, and rights conferred under the

easement are left to a court of competent jurisdiction over conflicting real

property claims.

15 . Stormwater from the catchment area into the proposed improvements

will maintain the current runoff patterns. In simple terms, the Project

(exclusive of the upstream rock check dam) entails little more than enclosing

the existing asphal t lined swale with a n outfall pipe , overlain by a pervious

surface swale and inlets.

16 . Water flowing from the 15 - inch pipe in to the 18 - inch outfall pipe will

decrease in velocity as the conveyance pipe volume is increased. Thus, despite

PetitionerÔs contention that the increase in pipe size is unnecessary, it serves

a benefit. In addition, t he termin al endwall for the 18 - inch concrete pipe will

incorporate baffles to further dissipate flows. Water discharged from the

baffled endwall will then flow overland to Lake Ola, much as it does now

from the end of the asphalt swale. There was no persuasive evidence

introduced that water discharged from the Lake Ola discharge portion of the

Project will reasonably be expected to result in scour or erosion.

17 . The outfall pipe and associated endwall will result in 0.001 acre s of

permanent wetland impact , limited to the footprint of the baffled endwall,

and 0.031 acre s of temporary wetland impact from the installation of the pipe

waterward of the wetland delineation line. The calculation of temporary

wetland impact is restricted to the temporary effects associated with the

construction of the outfall structure , and has no relation to the waters to be

discharged from the outfall pipe.

18 . The Project also includes construction of a n upgradient rock check

dam to be placed across the roadside swale along Lake Ola Boulevard west of

its intersection with Lake Ola Circle. The rock check dam is proposed t o be

constructed with relative ly large pieces of rock to an elevation of six inches

above the bottom of the swale. The rock check dam is designed to slow the

passage of low velocity stormwater resulting from minor rain events, allowing

energy dissipation o f the stormwater, and a Ñsmall amountÒ of water being

held up behind the dam to infiltrate into the soil, thereby incrementally

reducing the volume of stormwater downgradient. The purpose of the rock

check dam is not to enhance or promote water quality treatment, or to affect

the flow of water in the existing stormwater system during periods of

significant rainfall. In higher flow storm events, the rock check dam will have

littl e or no attenuating effect on stormwater moving down the Lake Ola

Boulevard swale. In no event will the rock check dam increase the volume or

velocity of stormwaters through the Lake Ola Boulevard swale, or affect

existing water quality in the overall stor mwater management system.

19 . The proposed Project will not add to, diminish, or change any existing

land use , soil types, or impervious areas in the 48.3 - acre catchment area .

Except for the rock check dam and the grading of the proposed swale over the

proposed 18 - inch outlet pipe, the Project will not change the existing

topography in the 48.3 - acre catchment area.

Stormwater Permitting Standard and Modeling Calculations

20 . I n permitting stormwater management systems, or elements thereof,

the District is guided by the principle that post - development stormwater

volume cannot exceed predevelopment stormwater volume.

21 . Predevelopment, i.e. , existing, stormwater volumes are those

conditions that existed when ERP Application No. 154996 - 2 was submitted in

March 2020.

22 . Petitioner has argued that predevelopment volumes should be

calculated based on conditions in the catchment area that existe d as far back

as 2010. Petitioner has not, nor could he, provide any authority to support

the assertion that existing conditions in an area subject to a permit

application are those conditions existing a decade prior. Th us, PetitionerÔs

argument is rejecte d.

2 3 . In order to calculate pre - and post - development volumes, Orange

County utilized the Interconnected Channel and Pond R outing (ICPR) model

to calculate flows. The preponderance of the evidence established that the

ICPR is an accepted and reliable method for determining stormwater flows

and volumes.

Scenario 1

2 4 . Ms. Dewey met with Mr. Bowers at his property in June 2020 to

disc uss the Project. Afterwards, in order to satisfy certain of Mr. Bowers Ôs

inquiries, Ms. Dewey asked Orange County to run the ICPR model using

reasonably available data to estimate runoff conditions that existed in the

area prior to 2010 , an exercise dubbed Scenario 1.

2 5 . Ms. Dewey testified convincingly that the Scenario 1 exercise Ñwas

really for historical context,Ò and was not an effort to determine Ñexisting

conditionsÒ for purposes of the District Ôs pre - and post - development

calculations.

2 6 . Much of the testimony and evidence offered by Petitioner concerned

disagreements in the model inputs for Scenario 1, particularly as related to

elevations at the Cooper Cross - drain and the Holstrom driveway. Though the

disagreement s were in inches, differences in inches can affect the dir e ction

and volume of stormwater flows.

2 7 . Mr. Morris opined that the outfall pipe at Mr. BowersÔ s property could

not be properly sized without a determination of the full volume of water to

be introduced into it. However, Mr . MorrisÔs testimony is predicated on

conditions that existed in the area in 2010 and before. It was not based on

conditions that currently exist in the area, as is required by the District

rules. Furthermore, Petitioner Ôs witn esses did not opine as to a m ore

appropriate size for the discharge pipe because they ran no models of their

own.

2 8 . Mr. MorrisÔs testimony was also based on his conclusion that surface

elevation inputs at the Cooper Cross - drain and the Holstrom driveway were

incorrectly calculated. As h is solution, he suggested that Ñ all that needs t o be

done is for CDM to connect -- correct two points, rerun the model, and we'll

see what the real scenario one is. Ò Mr. Morris, however, did not run the model

to substantiate his testimony.

2 9 . Mr. Mack testified regarding the elevations disputed by Mr. Morris.

His opinions were based on surveys and methods of calculating elevation that

were reasonable and reliable , and led him to conclude that the model inputs

for Scenario 1 were accurate, and reasonabl y depicted conditions and

elevations that existed in the area in 2010 and before . His testimony is

accepted.

30 . Mr. Pernezny testified that , even under Scenario 1 conditions, the

proposed 18 - inch discharge pipe will be able to accommodate the flows for the

10 - year and 25 - year drainage storm events without exceeding the capacity of

the pipe. A smaller pipe , matching the existing 15 - inch input, would result in

discharges at its terminal end hav ing a higher velocity , and higher erosive

potential , while the 18 - inch pipe is designed to result in a decreased ve locity

and reduced erosi ve potential at the outfall.

3 1 . As indicated, Scenario 1 conditions are not relevant to a determination

of whether the Permit meets District permitting standards, because

Scenar io 1 does not reflect existing or predevelopment conditions in the

catchment area or at the discharge structure. Nonetheless, the

preponderance of the evidence establishes that the proposed Project, even

under S cenario 1 , meets the standards for issuance of the ERP.

Sce n ario 2

3 2 . In order to provide pre development and post - development conditions,

Orange County ran Scenario 2 to calculate existing conditions , i.e. , those

conditions that existed in the catchment area at the time the Permit

application was f iled.

3 3 . The existing conditions were then compared to the conditions that will

be expected after the construction of the permitted activities. The only

permitted activities consist of the outfall pipe and baffled endwall at

Mr. BowersÔ s property , and the rock check dam.

3 4 . A preponderance of the evidence, including the ICPR modeling results,

establish that the Project will not cause adverse water quantity impacts to

receiving waters and adjacent lands because the post - development peak rate

of d ischarge will not exceed the predevelopment peak rate of discharge.

3 5 . A preponderance of the evidence, including the ICPR modeling results,

establish that the Project will not cause flooding to on - site or off - site property

because the peak stages of the discharge will not ex tend beyond the limits of

Orange CountyÔs easement.

3 6 . A preponderance of the evidence, including the ICPR modeling results,

establish that the Project will not cause adverse impacts to existing water

storage and conveyance capabilities because the post - development peak rate

of discharge will not exceed that of the predevelopment peak rate of

discharge , and the peak stages of discharge during a 25 - year, 24 - hour storm

event will not extend beyond the limits of Orange CountyÔs easement .

3 7 . The modeling inputs for Scenario 2 were not disputed by PetitionerÔs

experts. In that regard, Mr. Morris testified that he had Ñno issue with the

input data for Scenario 2.Ò His objection was limited to the characterization

of the Scenario 2 data and , in particular , the 407 feet of pipe installed in

2010, as ÑexistingÒ conditions. Mr. Russell, in addition to the general lack of

weight given his testimony, admitted that he looked only ÑbrieflyÒ and Ñnot in

great depthÒ at the Scenario 1 modelin g, and not at all at Scenario 2.

Water Quality

3 8 . T he Project does not propose a change in drainage patterns, runoff

volumes, or land uses that would change the pollutant loading to Lake Ola.

Soil types and conditions, and areas that are impervious, are completely

unchanged from existing predevelopment conditions to conditions that will

exist after completion of the Project. There is no proposed change in runoff

from the predevelopment conditi on to the post - development condition. Water

flowing to Lake Ola in the existing condition is the same as the water that

will be flowing to Lake Ola after the Proposed Project is constructed.

Mr. Pernezny testified that there would be no appreciable differe nce in the

overall hydraulics of the system as a result of the replacement of the asphalt -

lined swale with the 18 - inch pipe, and that there will be Ñno change in water

quality characteristics between existing and proposed.Ò His testimony is

credited. As a result, the preponderance of competent substantial evidence

demonstrates that t he Project will not cause adverse water quality impacts to

Lake Ola .

3 9 . Because the Project is not adding pollutants to the stormwater, water

quality treatment is not required. Nonetheless, Orange County proposed

construction of a rock check dam upstream, which will help slow down water

flow and thereby promote infiltration fo r smaller storm events. Increased

infiltration, even marginally, will result in more stormwater being absorbed

into the ground, and fractionally less traveling towards the point of discharge

to Lake Ola. Under no possible circumstance will the rock check d am cause or

contribute to any adverse impact to the quality of waters flowing from the

catchment area to the point of discharge.

40 . Orange County has proposed the deployment of erosion, sediment , and

turbidity control measures to be utilized during constr uction. Thus, there is

expected to be no temporary water quality impacts related to the construction

or period of stabilization of the proposed Project.

Wetland Impacts

4 1 . T he Project footprint contains a total of 0.167 acres within an existing

drainage easement . The wetlands are defined as such due solely to the

presence of hydric soils. The area w ithin the P roject boundaries have been

mowed and maintained as a single - family residential lawn dominated by

St. Augustine grass , thus , effectively eliminating any beneficial wetland

function or value. Although the area in which construction is to occur

includes sparse emergence of scattered dollarweed , it is not defined as a

wetland due to the dominance of any wetland plant species.

4 2 . The existing asphalt - li ned swale provid e s no significant value to

functions provided to fish and wildlife and their habitat.

4 3 . Given the lack of existing wetland values in the Project area, t he 0.001

acre s of permanent impacts and 0.031 acre s of temporary impacts are not

adverse . Thus, Orange County was not required to eli minate or reduce the

impacts. Since the Project will not cause adverse impacts and the area has no

significant ecological value, mitigation is not required.

Secondary Impacts

4 4 . Rule 62 - 330.301(1)(f) and A.H. Vol ume I, section 10.1.1 , 2 provide that

Ñ[a] regulated activity will not cause adverse secondary impacts to the water

2 The Environmental Resource Permit ApplicantÔs Handbook has been adopted as a rule for

use by DEP and the stateÔs five water management districts. Fla. Admin. Code R. 62 -

resources .Ò As set forth in the Findings of Fact herein, the Project Ð will not

cause or contribute to viola tions of water quality standards or adverse

impacts to the functions of wetlands or other surface waters .Ò There was no

competent substantial evidence offered that the Project will Ñ adversely

impact the ecological value of uplands for bald eagles, and aquatic or wetland

dependent listed animal species for enabling existing nesting or denning by

these species . Ò The Project will not affect significant historical and

archaeological resources. Finally, t here is no indication that future phases or

activities closely linked or causally related to the Project will result in water

quality violations or adverse impacts to wetlands or other surface waters.

4 5 . A preponderance of the competent substantial evidence received in

this case establishes that Orange Coun ty provided reasonable assurance that

the Project will not cause adverse secondary impacts to wetlands and other

surface waters as defined in A.H. Vol ume I , section 10.2.7 .

Public Interest Test

4 6 . R ule 62 - 330.302(1)(a) , as supplemented by A.H. Vol ume I, section

10.2.3 , requires that projects :

L ocated in, on, or over wetlands or other surface

waters will not be contrary to the public interest, or

if such activities significantly degrade or are within

an Outstanding Florida Water, are clearly in the

public interest, as determined by balancing the

following criteria as set forth in sections 10.2.3

through 10.2.3.7 of Volume I .

What follows are seven listed criteria. Lake Ola is not an Outstanding

Florida Water . Thus, the standard applicable to those elements of the Project

that are to be constructed in, on, or over wetlands or other surface waters is

that they not be contrary to the public interest.

330.010(4). The A.H. was developed Ñto help persons unders tand the rules, procedures,

standards, and criteria that apply to the environmental resource permit (ERP) program

under Part IV of Chapter 373 of the Florida Statutes (F.S.).Ò A.H. Vol. I, § 1.0.

4 7 . The first public interest factor is whether the Project Ñwill adversely

affect the public he alth, safety, or welfare or the property of others.Ò The part

of the Project located in, on, or over wetlands or other surface waters is

within a mowed and maintained residential lawn . T he Project will not cause

an environmental hazard to public health or safety; is not located in a

shellfish harvesting area; and will not cause flooding or environmental

impacts to the property of others . A preponderance of the competent

substantial evidence established that the Project will meet all w ater quantity

standards, and that the Project will cause no increase in water volume or

velocity from existing predevelopment conditions. The prima facie case

established by Orange County established, for purposes of this proceeding,

that the proposed drainage pipe and outfall will be contained entirely within

Orange CountyÔs easement. Nonetheless, as set forth previously, and as will

be discussed in the Conclusions of Law, d isputes over the scope, extent, and

rights under the easement are left to a court of competent ju risdiction.

4 8 . The second public interest factor is whether the Project Ñwill adversely

affect the conservation of fish and wildlife, including endangered or

threatened species or their habitats.Ò There was nothing received in evidence

to support a findin g that the Pro ject area is utilized by wildlife , or that it

supports nesting or denning.

4 9 . The third public interest factor is whether the Project Ñwill adversely

affect navigation or the flow of water or cause harmful erosion or shoaling.Ò

The Project is located landward of the waters of Lake Ola and , therefore , will

not impede navigability. A preponderance of the competent substantial

evidence establishe d that neither the discharge from the pipe and endwall

structure, nor the effects of the rock check dam , will ca u se erosion or

shoaling.

50 . The fourth public interest factor is whether the Project Ñwill adversely

affect the fishing or recreational values of marine productivity in the vicinity

of the project.Ò A preponderance of the competent substantial evidence

established that there will be no impacts to fisheries, boating, or swimming

activities on Lake Ola.

5 1 . The fifth public interest factor is whe ther the Project Ñwill be of a

temporary or permanent nature.Ò The Project will result in 0.001 acre s of

permanent impacts and 0.031 acre s of temporary impacts associated with

construction of the outfall structure. A.H. Vol ume I , section 10.2.3.5

establishes that Ñ[t] emporary impacts will be considered less harmful than

permanent impacts of the same nature and extent .Ò Given that Petitioner has

maintained the hydric - soil wetlands as a residential St. Augustine grass

covered lawn, t here is no signif icant ecological value to the wetlands. O nce

the installation of the drainage pipe is complete and stabilized, it will have no

impact on the residential lawn. T he ecological effect of the 0.001 acre s of

permanent impact is, given the nature of the affected wetland, insignificant.

5 2 . The sixth public interest factor is whether the Project Ñwill adversely

affect or will enhance significant historical and archaeological resources.Ò A

preponderance of the competent substantial evidence established that there

a re no known historical or archaeological resources in the area. The proposed

P ermit also contains a condition for Orange County to cease activities and

contact the Division of Historical Resources if any artifacts are encountered

during construction.

5 3 . The seventh public interest factor is the Ñcurrent condition and

relative value of functions being performed by areas affected by the proposed

activities.Ò As set forth herein, the area affected by the Project has no

wetland value due to its conversion to use as PetitionerÔs residential lawn.

5 4 . A preponderance of the competent substantial evidence received in

this case establishes that Orange County provided reasonable assurance that

the Project will not be contrary to the public interest as defined in A.H.

Vol ume I, section 10.2. 3 .

Cumulative Impacts

5 5 . R ule 62 - 330.302(1)(b), as supplemented by A.H. Vol ume I, section

10.2.8, establish that an applicant must provide reasonable assurance that a

project Ñwill not cause unacceptable cumulative impacts to wetlands and

other surface watersÒ within the same drainage basin. The impact s on

wetlands and surface waters are reviewed by evaluating the impacts to water

quality wetland functions . As set forth herein, the Project will have no effect

on water qualit y, and the affected hydric - soil wetlands have no functional

wetland value due to their conversion to a mowed and mai ntained residential

grass lawn.

56 . A preponderance of the competent substantial evidence received in

this case establishes that Orange Cou nty provided reasonable assurance that

the Project will not cause unacceptable cumulative impacts to wetlands and

other surface waters as defined in A.H. Vol ume I, section 10.2.8.

Special Basins

5 7 . Petitioner argues that the Project does not meet the applicable special

basin criteria for the Ocklawaha River Hydrologic Basin or the special basin

criteria for the Wekiva Recharge Protection Area due to the perceived errors

in the ICPR model inputs and results. The argument is largely based on the

assumpti on that existing predevelopment conditions for the Permit should be

based on those existing in 2010, rather than those existing at the time of the

Permit application. As set forth herein, that argument is rejected.

5 8 . The a pplicable special criteri on for the Ocklawaha River Hydrologic

Basin provide s that Ñ[t] he system shall meet applicable discharge criteria for

10 - year and 25 - year frequency storms. Ò Competent substantial evidence

established that Orange County applied those discharge criteria in its ICPR

modeling, and th at the data demonstrated that the post - development peak

rate of discharge to Lake Ola will not exceed the predevelopment or existing

condition peak rate of discharge for 10 - year and 25 - year frequency storms .

5 9 . The a pplicable special crit eri on for the Wekiva Recharge Protection

Area require s retention storage of three inches of runoff Ñ from all impervious

areas proposed to be constructed on soils defined as Type ÓAÔ soils.Ò The

Project proposed no construction of impervious surfaces on Typ e A soils.

60 . A preponderance of the competent substantial evidence received in

this case establishes that the proposed Project does not violate special basin

criteria for the Ocklawaha River Hydrologic Basin or the Wekiva Recharge

Protection Area pursua nt to A.H. Vol ume I I (SJRWMD) , section s 1 3. 2

and 13.3 .

Plan Certification

6 1 . Petitioner argues that Orange County failed to provide signed and

sealed plans and calculations in support of its Permit application as required

by A.H. Vol ume II (SJRWMD) , section 2.3 . The evidence in this case

established that the original professional engineer assigned to the Permit

retired. Mr. Pernezny, as the successor engineer, was asked by the District to

sign the Permit application, which was done on May 3, 2021. B u t for

Mr. PerneznyÔs signature, the Permit application was unchanged. Petitioner

was aware that Mr. Pernezny was assuming responsibility as engineer - of -

record well prior to the final hearing in this case.

62 . This proceeding, being de novo in nature, is intended to formulate

final agency action and not to review action taken earlier and preliminarily .

The documents received in evidence at the final hearing were signed , sealed ,

and dated as required, and are sufficient to provide reasonable assurance

that the project meets District permitting standards .

Legal A uthorization

63 . Rule 62 - 330.060(3), entitled Content of Applications for Individual and

Conceptual Approval Permits , provides, in pertinent part, that:

The applicant must certify that it has sufficient real

property interest over the land upon which the

activities subject to the application will be

conducted, as required in Section A of Form 62 -

330.060(1) and Section 4.2.3(d) of the ApplicantÔs

Handbook V olume I.

64 . Similarly, A.H. Volume I, section 4.2.3 provides, in pertinent part, that

an application for an ERP include :

(d) Documentation of the applicantÔs real property

interest over the land upon which the activities

subject to the application will be conducted.

Interests in real property typically are evidenced by:

* * *

2. The applicant being the holder of a recorded

easement conveying the right to utilize the property

for a purpose consistent with the authorization

requested in the permit app lication.

65 . A.H. Volume II (SJRWMD) , section 2.5, entitled Legal Authorization,

further provides that:

Applicants which propose to utilize offsite areas not

under their control to satisfy the criteria for

evaluation listed in section 2.0 must obtain

sufficient legal authorization prior to permit

issuance to use the area. For example, an applicant

who proposes to locate the outfall pipe from the

stormwater basin to the receiving water on an

adjacent property owner's land must obtain a

drainage easement or other appropriate legal

authorization from the adjacent owner. A copy of the

legal authorization must be submitted with the

permit application.

66. Neither the rule nor the A.H. require proof as would be necessary to

adjudicate disputes in property ri ghts and boundaries in circuit court.

Rather, they require a good faith certification. That certification was provided

by Orange County in the Permit application.

6 7 . Orange County also submitted , along with its certification,

documentation , including co pies of the drainage easement and survey ,

sufficient to meet the criteria in the rule and the A.H. , that it has sufficient

real property interest over the land upon which the Project is to be conducted .

That documentation , on its face, established Orange CountyÔs prima facie

right to use the recorded drainage easement and , thus , entitlement to the

Permit. The evidence submitted by Petitioner was not sufficient, even if

accepted as true, to demonstrate that Orange County was proposing to

construct the drain age improvements outside of the boundary of the

easement.

6 8 . Rule 62 - 330.350(1)(i), which has been incorporated verbatim as

Condition 9 of the Permit , provides that , as a general condition :

This permit does not:

a. Convey to the permittee any property rights or

privileges, or any other rights or privileges other

than those specified herein or in Chapter 62 - 330,

F.A.C.;

b. Convey to the permittee or create in the permittee

any interest in real property;

c. Relieve the permittee from the need to obtain and

comply with any other required federal, state, and

local authorization, law, rule, or ordinance; or

d. Authorize any entrance upon or work on property

that is not owned, held in easement, or controlled by

the permittee.

69 . As set forth in the Concl usions of Law, disputes as to property

boundaries and rights are to be resolved outside of the context of this

proceeding.

Ultimate Findings of Fact

70 . The greater weight of the competent substantial evidence establishes

that neither the rock check dam nor the 0.167 - acre outfall drainage

improvement at Lake Ola Circle are reasonably expected to adversely

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

surface water storage and conveyance capabilities, or otherwise cause

ad verse water quantity or flooding impacts to receiving waters and adjacent

lands. Evidence to the contrary was not persuasive.

71 . The greater weight of the competent substantial evidence establishes

that neither the rock check dam nor the 0.167 - acre outfal l drainage

improvement at Lake Ola Circle are reasonably expected to cause or

contribute to a violation of state water quality standards. Evidence to the

contrary was not persuasive.

72 . The greater weight of the competent substantial evidence establishes

that the rock check dam and the 0.167 - acre outfall drainage improvement at

Lake Ola Circle meet all applicable permitting criteria for issuance of the

Permit. Petitioner did not meet hi s burden of demonstrating that the Permit

should not be issued. Evidence to the contrary was not persuasive.

C ONCLUSIONS OF L AW

Jurisdiction

73 . 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

74 . Section 120.52(13) defines a Ñparty , Ò in pertinent part, as a person

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

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

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

in which the substantial intere sts of a party are determined by an agency.Ò

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

established in the seminal 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

proceeding, 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

aspect of the test deals with the degree of injury. The

second deals with the nature of the injury.

Id. at 482.

7 6 . Agrico wa s not intended as a barrier to the participation in

proceedings under chapter 120 by persons who are affected by the potential

and foreseeable results of agency action ; ra ther, Ñ[t]he intent of Agrico was to

preclude parties from intervening in a proceedin g where those partiesÔ

substantial interests are totally unrelated to the issues that are to be

resolved in the administrative proceedings.Ò Mid - Chattahoochee River Users

v. Fla. Dep't of Envtl. Prot. , 948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing

Gregory v. Indian River Cty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

7 7 . The standing requirement established by Agrico has been refined, and

now stands for the proposition that standing to initiate an administrative

proceeding is not dependent on proving that the proposed agency action

would violate applicable law. Instead, standing requires proof that the

petitioner has a substantial interest and that the interest could reasonably be

affected by the proposed agency action. Whether the effect would constitute a

violation of applicable law is a separate question.

Standing is Ña forward - looking conceptÒ and Ñcannot

ÓdisappearÔ based on the ultimate outcome of the

proceeding.Ò. . . When standing is challenged during

an administrative hearing, the petitioner must o ffer

proof of the elements of standing, and it is sufficient

that the petitioner demonstrate by such proof that

his substantial interests Ñ could reasonably be

affected by . . . [the] proposed activities.Ò

Palm Beach Cty. Envtl. Coal. v. Fla. Dep't of En vtl. Prot. , 14 So. 3d 1076,

1078 (Fla. 4th DCA 2009) (citing Peace River/Manasota Reg'l Water Supply

Auth. v. IMC Phosphates Co . , 18 So. 3d 1079, 1083 (Fla. 2d DCA 2009); and

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

(Fla. 1st DCA 1991)); see also, St. Johns Riverkeeper, Inc. v. St. Johns River

Water Mgmt. Dist. , 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011) (ÑUltimately,

the ALJ's conclusion adopted by the Governing Board that there was no proof

of harm or that the harm would be offset went to the merits of the challenge,

not to standing.Ò).

7 8 . Mr. Bowers alleged standing based on his ownership of the property

encumbered by the drainage easement. This proceeding is designed to protect

property owners from potential pollution, water quality and quantity

violations, and other adverse impacts caused by permitted activities, impacts

that are the subject of chapter 373 and the rules adopted thereunder.

Mr. BowersÔs status as the owner of the underlying fee over which Orange

County holds its easement, and that the permitted activities will cause or

contribute to flooding of his land; impact s to physical structures on his land;

deposits of excessive sediments on his land and shoreline; water quality

violations in Lake Ola; algal blooms on Lake Ola; adverse effects on wildlife;

impairment of boating, fishing , and recreational interests; and an imbalance

of flora and fauna, including the rapid growth of invasive plant species that

impair the Lake Ola shoreline and its scenic views , meet the second prong of

the Agrico test .

7 9 . Ñ[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 filed, and Ó[t]he injury or threat of injury must be both real and

immediate, not conjectural or hypothetica l.ÔÒ S. Broward Hosp. Dist. v. Ag. for

Health Care Admin. , 141 So. 3d 678, 68 1 (Fla. 1st DCA 2014)(citing Vill. Park

Mobile Home Ass Ô n v. Dep Ô t of Bus. Reg. , 506 So. 2d 426, 433 (Fla. 1st DCA

1987)). Mr. BowersÔ s allegations that the activities are expecte d to result in

the adverse impacts described above are sufficient to meet the standard of an

Ñinjury in fact which is of sufficient immediacy to entitle [him] to a section

120.57 hearing.Ò

80 . Orange County has standing as the applicant for the Permit . Ft. Myers

Real Estate Holdings, LLC v. Dep Ô t of Bus. & Prof Ô l Reg. , 53 So. 3d 1158, 1162

(Fla. 1st DCA 2011); Maverick Media Group , Inc. v. DepÔt of Transp. , 791 So .

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

Nature of the Proceeding

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

and not to review action taken earlier and preliminarily . § 1 20.57(1)(k),

Fla. Stat; Young v. DepÔt of Cmty. Aff. , 625 So. 2d 831, 833 (Fla. 1993);

Hamilton Cty. Bd. of Cty. Comm Ô rs v. Dep Ô t of Envtl. Reg. , 587 So. 2d 1378,

1387 (Fla. 1st DCA 1991) ; McDonald v. DepÔt of Banking & Fin. , 346 So. 2d

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

B urden and Standard of Proof

82 . 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

p ermit 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 Ô s staff report or notice of

intent to approve the permit, license, or conceptual

approval. Subsequent to the presentation of the

applicant Ô s prima facie case and any direct evidence

submitted by the agen cy, the petitioner initiating

the action challenging the issuance of the permit,

license, or conceptual approval has the burden of

ultimate 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.

83 . The Permit was issued pursuant to rules promulgated under chapter

373 . Therefore, the Permit is subject to the abbreviated presentation and

burden - shifting described in section 120.569(2)(p).

84 . Orange County and the District made the prima facie case of

entitlement to the Permit by entering into evidence the application file and

supporting doc umentation , and the District Ôs TSR and proposed Permit .

85 . As to the issue of the hearsay nature of the engineering plans and

reports, the nature of evidence that is sufficient to establish prima facie

entitlement to an ERP was discussed in Last Stand, Inc. , and George

Halloran v. Fury Management, Inc., and Department of Environmental

Protection , DOAH Case No. 12 - 2574 (Fla. DOAH Dec. 31, 2012; Fla. DEP

Feb. 7, 2013), in which Judge Bram D.E. Canter stated:

90. When an agency's intent to issue a permit has

been challenged, the procedure and burden of proof

established in section 120.569(2)(p) provides for a

logical and efficient proceeding. The permit

application and supporting material that the agency

determ ined was satisfactory to demonstrate the

applicant's entitlement to the permit retains its

status as satisfactory when it is admitted into

evidence at the final hearing, and it does not lose

that status unless the challenger proves that specific

aspects of the application are unsatisfactory.

91. It follows that the permit application and

supporting material submitted to the agency may be

received into evidence for the truth of the matters

asserted in them, without being subject to hearsay

objections. If th ese documents could not be admitted

except through witnesses with personal knowledge

and requisite expertise as to all statements

contained within the documents, one of the primary

purposes of the statute would be destroyed.

8 6 . With Orange County having made its prima facie case for the Permit ,

the burden of ultimate persuasion was on Mr. Bowers to prove his case in

opposition to the Permit by a preponderance of the competent and substantial

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

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

8 7 . The standard of proof is by a preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat.

8 8 . ÑSurmise, conjecture or speculation have been held not to be

substantial evidence . Ò Dep Ô 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 Ô n , 108 So. 2d 601, 607 (Fla. 1959)).

Reasonable Assurance

8 9 . Approval of the Permit i s dependent upon there being reasonable

assurance that the activities authorized will meet applicable standards.

90 . Reasonable assurance means Ña substantial likelihood that the project

will be successfully implemented.Ò 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 applicable 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).

Real Property Interest

91 . A.H. Volume I, s ection 4.2.3(d) provides that:

The submitted application must contain one original

mailed or an electronic submittal of the materials

requested in the applicable sections of the form, and

such other information as is n ecessary to provide

reasonable assurance that the activities proposed in

the application meet the conditions for issuance

under Rule 62 - 330.301, F.A.C., the additional

conditions for issuance under Rule 62 - 330.302,

F.A.C., and the applicable provisions of the

ApplicantÔs Handbook. Those materials include:

* * *

(d) Documentation of the applicantÔs real property

interest over the land upon which the activities

subject to the application will be conducted.

Interests in real property typically are evidenced by:

* * *

2. The applicant being the holder of a recorded

easement conveying the right to utilize the property

for a purpose consistent with the authorization

requested in the permit application.

92 . Orange County submitted documentation tha t, on its face, and in

accordance with section 120.569(2)(p), established its prima facie entitlement

to the Permit. The evidence submitted by Petitioner was no t sufficient, even

if accepted as true, to demonstrate that Orange County was proposing to

const ruct the drainage i m provements on Mr. BowersÔ s property outside of the

boundary of the easement.

93 . The issue for determination in this proceeding is simply whether

Orange County provided prima facie evidence to establish a right to use the

property on which it intends to construct its drainage outfall . Unlike

substantive issues of environmental impacts and public interest over which

DOAH has substantive jurisdiction, the issue of property control is simply a

matter of whether the applicant p rovided facially sufficient documentation of

its real property interest over the land upon which the activities subject to

the application will be conducted. Orange County submitted such facially

sufficient evidence. 3

94 . A regulatory agency with jurisdic tion over environmental matters, as

is the District , does not have jurisdiction to determine issues :

outside an environmental context in light of the

jurisdiction to adjudicate all actions involving the

title and boundaries of real property conferred upon

circuit courts by section 26.012(2), Florida Statutes.

And, as noted by appellee, agencies would not, by

their nature, ordinarily have jurisdiction to decide

issues of law inherent in evaluation of private

property impacts.

Miller v. Dep't of Envtl. Reg. , 504 So. 2d 1325, 1327 - 28 (Fla. 1st DCA 1987);

see also Buckley v . Dep't of HRS , 516 So. 2d 1008, 1009 (Fla. 1st DCA 1987)

(An administrative hearing is not the appropriate forum for a property

dispute and that a Ñcourt of competent jurisdiction is more a ppropriateÒ) . The

permit in this case, if issued, conveys no title, and affects no real property

interests. Thus, o nce prima facie evidence of a sufficient real property

interest is provided, disputes over the scope, extent, and rights conferred are

3 Obviously, if the evidence submitted does not, on its face , relate to a proposed project area,

e.g., a survey for subdivision Lot A instead of subdivision Lot F, there is nothing to prevent a

finding that, on its face, the documentation of an applicantÔs real property interest is

insufficient. That is not the cas e here . I t is undisputed that Mr. Bowers owns Lots 1 and 2 of

Block 8 in the Tangerine Terrace subdivision, and that Orange County holds an easement

over the eastern 20 feet of the property. T he dispute is over subtle differences in the angle of

the northe ast corner of the property amounting to less than 1.5 degrees. Accepting

PetitionerÔs evidence of the property/easement boundary, the dispute would, on its face,

result in a potential difference at the end of the project area of little more than 5 feet in

width, with the Project area remaining within the uncontested limits of the easement.

(PetitionerÔs Exhibit 38). However, a definitive determination of the line remains within the

province of the circuit court.

to be left to a court with jurisdiction over any conflicting property claims.

£ 26.012(2)(g), Fla. Stat. (ÑCircuit courts shall have exclusive original

jurisdiction: (g) In all actions involving the title and boundaries of real

property.Ò); Cope v. City of Gulf Breeze and DepÔt. of Envtl. Prot. , Case No.

10 - 8893, R.O. para. 50 (Fla. DOAH Apr . 20, 2011; DEP June 6,

2011) (ÑBecause a dispute over the exact boundary lines of Lot 37 exists, this

issue must be resolved in the appropriate circuit court.Ò).

Sta ndards

95 . Rule 62 - 330.020(2) provides, in pertinent part, that :

a permit is required prior to the construction,

alteration, operation, maintenance, removal, or

abandonment of any project that, by itself or in

combination with an activity conducted after

October 1, 2013, cumulatively results in any of the

following: (a) Any project in, on, or over wetlands or

other surface waters; ... or (j) Any modification or

alteration of a project previously permitted under

part IV of chapter 373, F.S.

9 6 . Petitioner argues that other ÑthresholdÒ elements of rule 62 - 330.020(2)

apply in this case, which would require that the Permit include swales , pipes,

and imper v ious and semi - impervious areas installed or constructed in 2010.

PetitionerÔs argument requires that conditions existing in 2010 be accepted as

constituting ÑexistingÒ or Ñ predevelopment Ò conditions on the March 2020

date of the Permit application . They are not.

97 . A.H. Volume 1, section 2.0(b) provides, in pertinent part, that

Ñ[d] efinitions and terms that are not defined above ... will be defined using

published, generally accepted dictionaries .Ò The generally accepted definition

of ÑexistingÒ is Ñ in existence or operation at the time under consideration;

current. Ò Lexico - Powered by Oxford, available at

https://www.lexico.com/en/definition/existing (last visited Jul y 12, 2021) . The

existing , or current , predevelopment conditions are those that existed when

ERP Application No. 154996 - 2 was submitted in March 2020.

9 8 . Rule 62 - 330. 301(1) provides , in pertinent part, that:

(1) To obtain an individual or conceptual approval

permit, an applicant must provide reasonable

assurance that the construction, alteration,

operation, maintenance, removal, or abandonment

of the projects regulated under this chapter:

(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 impacts to existing surface

water storage and conveyance capabilit ies;

(d) Will not adversely impact the value of functions

provided to fish and wildlife and listed species by

wetlands and other surface waters;

(e) Will not adversely affect the quality of receiving

waters such that the state water quality standards

set forth in chapters 62 - 4, 62 - 302, 62 - 520, and 62 -

550, F.A.C., including the antidegradation

provisions of paragraphs 62 - 4.242(1)(a) and (b),

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

rule 62 - 302.300, F.A.C., and any special standards

for Outstand ing Florida Waters and Outstanding

National Resource Waters set forth in subsections

62 - 4.242(2) and (3), F.A.C., will be violated;

(f) Will not cause adverse secondary impacts to the

water resources. In addition to the criteria in this

subsection and in subsection 62 - 330.301(2), F.A.C.,

in accordance with section 373.4132, F.S., an

applicant proposing the construction, alteration,

operation, maintenance, abandonment, or removal

of a dry storage facility for 10 or more vessels that is

functionally associat ed with a boat launching area

must also provide reasonable assurance that the

facility, taking into consideration any secondary

impacts, will meet the provisions of paragraph 62 -

330.302(1)(a), F.A.C., including the potential

adverse impacts to manatees;

(g ) Will not adversely impact the maintenance of

surface or ground water levels or surface water flows

established pursuant to section 373.042, F.S.;

(h) Will not cause adverse impacts to a Work of the

District established pursuant to section 373.086,

F.S.;

(i) Will be capable, based on generally accepted

engineering and scientific principles, of performing

and functioning as proposed;

(j) Will be conducted by a person with the financial,

legal and administrative capability of ensuring that

the activity wi ll be undertaken in accordance with

the terms and conditions of the permit, if issued; and

(k) Will comply with any applicable special basin or

geographic area criteria

9 9 . Rule 62 - 330. 302(1) provides , in pertinent part, that:

(1) In addition to the con ditions in rule 62 - 330.301,

F.A.C., to obtain an individual or conceptual

approval permit under this chapter, an applicant

must provide reasonable assurance that the

construction, alteration, operation, maintenance,

repair, removal, and abandonment of a pr oject:

(a) Located in, on, or over wetlands or other surface

waters will not be contrary to the public interest, or

if such activities significantly degrade or are within

an Outstanding Florida Water, are clearly in the

public interest, as determined by b alancing the

following criteria as set forth in sections 10.2.3

through 10.2.3.7 of Volume I:

1. Whether the activities will adversely affect the

public health, safety, or welfare or the property

of others;

2. Whether the activities will adversely affect the

conservation of fish and wildlife, including

endangered or threatened species, or their

habitats;

3. Whether the activities will adversely affect

navigation or the flow of water or cause harmful

erosion or shoaling;

4. Whether the activities will ad versely affect the

fishing or recreational values or marine

productivity in the vicinity of the activity;

5. Whether the activities will be of a temporary

or permanent nature;

6. Whether the activities will adversely affect or

will enhance significant historical and

archaeological resources under the provisions of

section 267.061, F.S.; and

7. The current condition and relative value of

functions being performed by areas affected by

the proposed activities.

(b) Will not cause unacceptable cumulative i mpacts

upon wetlands and other surface waters as set forth

in sections 10.2.8 through 10.2.8.2 of Volume I.

Entitlement t o t he Permit

100 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, w ill not cause adverse water quantity impacts to

receiving waters and adjacent lands . Thus, the Project meets the standards

established in r ule 62 - 330.301(1) (a).

10 1 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, w ill not cause adverse flooding to on - site or off - site

property . Thus, the Project meets the standards established in

r ule 62 - 330.301(1)( b ).

10 2 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will not cause adverse impacts to existing surface

water storage and conveyance ca pabilities. Thus, the Project meets the

standards established in r ule 62 - 330.301(1)( c ) .

10 3 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as d esigned, will not adversely impact the value of functions

provided to fish and wildlife and listed species by wetlands and other surface

waters. Thus, the Project meets the standards established in

r ule 62 - 330.301(1)( d ) and A.H. Vol ume I, section 10.1.1(a) .

10 4 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, w ill not adversely affect the quality of receiving

waters such that the state water quality standards will be violated. Thus, the

Project meets the standards established in r ule 62 - 330.301(1)( e ) and A.H.

Vol ume I, section 10.1.1( c ).

10 5 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will not cause adverse secondary impacts to the

water resources. Thus, the Project meets the standards established in

r ule 62 - 330.301(1)( f ) and A.H. Vol ume I, section s 10.1.1( f ) and 10.2.7 .

10 6 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will be capable, based on generally accepted

engineering and scientific principles, of performing and functioning as

proposed . Thus, the Project meets the standards established in

r ule 62 - 330.301(1)( i ) .

10 7 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will be conducted by a person with the financial,

legal , and administrative capability of ensuring t hat the activity will be

undertaken in accordance with the terms and conditions of the permit, if

issued . Thus, the Project meets the standards established in

r ule 62 - 330.301(1)( j ) , subject to a determination as to any disputes regarding

the boundary to or rights conferred under the easement by a court of

competent jurisdiction .

10 8 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

th e Project, as designed, will comply with applicable special basin or

geographic area criteria . Thus, the Project meets the standards established in

r ule 62 - 330.30 1 (1)( k ) and A.H. Vol ume I I (SJRWMD) , sections 13.2 and 13.3 .

10 9 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will not be contrary to the public interest . Thus, the

Project meets the standards established in r ule 62 - 330.30 2 (1)( a ) and A.H.

Vol ume I, section 10.2.3 .

1 10 . A preponderance of the competent substantial evidence presented in

this proceeding, as set forth in the Findings of Fact herein, establishes that

the Project, as designed, will not cause unacceptable cumulative impacts

upon wetlands and other surface wat ers. Thus, the Project meets the

standards established in r ule 62 - 330.302(1)(b) and A.H. Volume I, sections

10.1.1(g) and 10.2.8.

1 1 1 . As established in the F indings of F act, reasonable assurance was

provided that Orange County complied with all applicable standards for the

Permit established by rule s 62 - 330. 301 and 62 - 330.302, and the A.H. , and

that Orange C ounty is entitled to issuance of the Permit .

R ECOMMENDATION

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

R ECOMMENDED that the St. Johns River Water Management District enter a

final order issuing Environmental Resource Permit No. 154996 - 2 , as

proposed, to Respondent, Orange County, Florida , for the construction and

operation of an outfall drainage improvement project for a 0.167 - acre project

known as Lake Ola Circle Outfall Drainage Improvements, and the related

construction of an upgradient rock check dam in a swale along the north side

of Lake Ola Drive.

D ONE A ND E NTERED this 19th day of July , 20 2 1 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of July , 2021.

C OPIES F URNISHED :

Erin H. Preston, Esquire Sharon M. Wyskiel, Esquire

St. Johns River Water St. Johns River Water

Management District Management District

4049 Reid Street 4049 Reid Street

Palatka, Florida 32177 Palatka, Florida 32177

Linda S. Brehmer - Lanosa, Esquire Keith L. Williams, Esquire

Orange County AttorneyÔs Office Keith L. Williams Law, PLLC

201 South Rosalind Avenue, Third Floor 101 Canterbury Drive West

Orlando, Florida 32801 West Palm Beach, Florida 33407

Steven J. Kahn, Esquire Jessica Pierce Quiggle, Esquire

St. Johns River Water St. J ohns River Water

Management District Management District

4049 Reid Street 4049 Reid Street

Palatka, Florida 32177 Palatka, Florida 32177

Brian W. Bennett, Esquire Ann B. Shortelle, Ph.D., Exec utive Dir ector

Bennett Legal Group, P.A. St. Johns River Water

214 South Lucerne Circle East, Suite 201 Management District

Orlando, Florida 32801 4049 Reid Street (32177)

Post Office Box 1429

Palatka, Florida 3217 8 - 1429

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.