99-001919 Ahmad Thalji vs. Southwest Florida Water Management District And H.B.J. Investments Status: Closed Recommended Order on Thursday, December 23, 1999.

Summary: Applicant did not provide reasonable assurance of water quality effects or proposed surface water management system regarding inspection and maintenance; treatment of first 3/4 runoff; and plan or procedure water quality (Tampa Bay is Class II water).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AHMED THALJI, )

)

Petitioner, )

)

vs. ) Case No. 99-1919

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

HBJ INVESTMENTS, INC., )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Tampa,

Florida, on July 8, 1999.

APPEARANCES

For Petitioner: John R. Thomas

Wyckoff & Thomas, P.A.

233 Third Street North, Suite 102

Saint Petersburg, Florida 33701

For Respondent HBJ Investments, Inc.:

Michael Jacobs

Director, Legal Affairs

25 Second Street North, Suite 160

Saint Petersburg, Florida 33701

For Respondent Southwes t Florida Water Management District:

Anthony J. Mutchler

Assistant General Counsel

Southwest Florida

Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

STATEMENT OF THE ISSUE

The issue is whether Respondent HBJ Investments, Inc. is

entitled to an environmental resource permit to facilitate the

construction of the Betty Jones Spa on property adjacent to

property owned by Petitioner.

PRELIMINARY STATEMENT

By Notice of Final Agency Action for Approval, Respo ndent

Southwest Florida Water Management District informed Respondent

HBJ Investments, Inc. of the District's intent to issue an

environmental resource permit to facilitate the construction of

the Betty Jones Spa on 1.62 acres in downtown Saint Petersburg.

By Amended Petition for Formal Administrative Proceeding

served April 14, 1999, Petitioner challenged the issuance of the

environmental resource permit to Respondent HBJ Investments, Inc.

The grounds for challenging the permit are that Respondent HBJ

Investments, Inc. failed to provide reasonable assurance that the

proposed activity would not cause adverse water quantity impacts

to receiving waters and adjacent lands; would not cause adverse

flooding to on-site and off-site property; would not adversely

impact existing surface water storage and conveyance

capabilities; would not adversely impact the value of functions

provided to fish and wildlife, including listed species and

aquatic and wetland-dependent species, by wetlands, other surface

waters, and other water-related resources of the District; would

not adversely affect the quality of receiving waters so that

applicable water quality standards would not be violated; would

not cause adverse secondary impacts to the water resources; would

not adversely impact the maintenance of surface water or

groundwater levels of surface water flows established pursuant to

Section 373.042, Florida Statutes; would not adversely impact

works of the District, pursuant to Section 373.086, Florida

Statutes; would be capable, under generally accepted engineering

and scientific principles, of being effectively performed and of

functioning as proposed; would be conducted by an entity with

sufficient financial, legal, and administrative capability to

ensure that the activity will be undertaken in accordance with

the terms and conditions of the permit; would comply with any

applicable special basin or geographic area criteria established

pursuant to Chapter 40D-4, Florida Administrative Code; and would

not be contrary to the public interest or, if the proposed

activity would significantly degrade or would be within an

Outstanding Florida Water, would be clearly in the public

interest. The amended petition also alleges that the application

was not filed and completed in accordance with applicable

statutes and rules.

By Prehearing Stipulation presented at the start of the

hearing, the parties agreed that Petitioner timely filed its

amended petition, Respondent HBJ Investments, Inc. is a lawfully

constituted business entity, and the immediate vicinity of the

proposed activity contains no wetlands.

The Prehearing Stipulation identifies the legal issues as

the compliance of the application with Rules 40D-4.301(1)(a),

(b), (d), (e), and (f); Rule 40D-4.302(1)(b) and (c); Rule

40D -40.301(1)(f), (h), and (j); and Rule 40D-40.302(1)(a),

Florida Administrative Code.

At the hearing, Petitioner called one witness, Respondent

HBJ Investments, Inc. called two witnesses, and Respondent

Southwest Florida Water Management District called three

witnesses. The District offered the only exhibits: District

Exhibits 1-10, which were all admitted.

During the hearing, Petitioner sought leave to add to the

record, following the end of the hearing, evidence of water

quality in Tampa Bay. Over objection of Respondents, the

Administrative Law Judge allowed Petitioner to do so. By a

filing dated July 16, 1999, Petitioner added four items in

response to this ruling with an explanation of the items. This

filing is Petitioner Composite Exhibit 1.

By a filing dated July 28, 1999, Respondent Southwest

Florida Water Management District announced that it had no

objection to the Administrative Law Judge's taking official

notice of the federal Clean Water Act, 33 United States Code

Section 1313(d). Respondent Southwest Florida Water Management

District added that it had no evidence to contradict the

assertion that Tampa Bay waters are classified as "noncompliant"

or "impaired," according to the "parameters of concern" stated in

the "1998 303(d) List." Likewise, Respondent Southwest Florida

Water Management District stated that it had no evidence to

contradict the assertion that Tampa Bay waters are closed to

shellfish harvesting, effective as of sunset, July 5, 1999.

However, Respondent Southwest Florida Water Management

District noted that the "1998 303(d) List" did not identify the

pertinent geographic area of "Lower Tampa Bay" subject to the

shellfish harvesting moratorium and referred only to "direct

runoff to bay" as problematic in areas that might encompass the

Tampa Bay waters in question. On a related note, Respondent

Southwest Florida Water Management District also objected, as

beyond the scope of the permissible proffer, to the portion of

the proffer that attempted to show that the runoff from the

property of Respondent HBJ Investments, Inc. entered the portion

of Tampa Bay that is noncompliant under the Clean Water Act and

closed to shellfish harvesting. The Administrative Law Judge

overrules this objection, as well as the restatement of the

objections made at the hearing to this additional evidence.

The court reporter filed the Transcript on July 19, 1999.

FINDINGS OF FACT

1. On November 17, 1998, Respondent HBJ Investments, Inc.

(Applicant) filed an application (Application) with the South

Florida Water Management District (District) for an environmental

resource permit (ERP). The Application is for a Standard General

(minor systems) ERP.

2. The Application states that the proposed surface water

management system is to serve a 11,564 square foot health spa

with associated infrastructure improvements, such as parking,

utilities, landscaping, and a stormwater detention facility.

3. Section H of the Application responds to form questions

that are intended to determine whether an application meets the

requirements of a standard general ERP for a minor surface water

system. Among the threshold requirements is that the proposed

discharges from the site "will meet State water quality

standards, and the surface water management system will meet the

applicable technical criteria for stormwater management in the

Basis of Review." Another threshold requirement is that the

proposed activities will not cause significant adverse impacts

individually or cumulatively.

4. The Application states that the water quality treatment

system will be on-line detention with effluent filtration. The

Application and related documents describe the system in greater

detail. The system consists of drains, inlets, a swale, an

underground vault to provide effluent filtration through a sand

filter and perforated pipe, an internal oil and grease skimmer, a

control box, and a 15-inch diameter reinforced concrete pipe

providing outfall from the vault.

5. By Notice of Final Agency Action for Approval dated

February 4, 1999, the District proposed the issuance of a

"Standard General for Minor Surface Water Management Systems" ERP

for the construction, operation, and maintenance of the proposed

system (Permit).

6. Permit Specific Condition 2 requires: "The discharges

from this system shall meet state water quality standards as set

forth in Chapter 62-302 and Rule 62-4.242, F.A.C., for class

waters equivalent to the receiving waters."

7. Permit Specific Condition 8 requires, for vault systems,

that the system become dry within 72 hours after a rainfall

event.

8. Permit Specific Condition 9 requires the operation and

maintenance entity to submit inspection reports for inspections

to be performed every 18 months.

9. Permit Specific Condition 10 requires a water quality

monitoring program for systems, such as the proposed system,

using an internal oil and grease skimmer. This condition

obligates HBJ to take three samples during each of the first two

annual rainy seasons following the commencement of operation of

the system. The monitoring must take place immediately after

rainfall events of sufficient magnitude to cause a discharge from

the outfall structure. If the discharged water does not meet

water quality standards for oil and grease, as established by

Rule 62.302.510(3)(k), Florida Administrative Code, then the

permittee must alter the system to attain compliance for this

water quality parameter.

10. The subject parcel is bounded by Fourth Avenue South on

the north, First Street South on the east, Second Street South on

the west, and an unnamed alley on the south. This site is just

south of Al Lang Field.

11. In its present state, the parcel is nearly entirely

pervious surface. Some of the stormwater flowing onto the parcel

percolates into the soils, and the remainder flows into City of

Saint Petersburg stormwater sewers, from which it is carried

about two city blocks to Tampa Bay, where it is discharged. The

parcel was formerly used for single-family residential housing,

but is now mostly cleared. The runoff from the site presently

carries mostly sediments.

12. After the proposed construction, 79 percent of the

parcel would consist of impervious surface. Although small areas

of the developed parcel might remain vegetated, and thus add

nutrients into the runoff, the primary change in the runoff will

consist of the addition of automobile-related contaminants,

including, but not limited to, oil and grease.

13. HBJ's engineer designed the proposed surface water

management system to treat the first one-half inch of stormwater

runoff. The engineer's report notes, in a letter dated

November 13, 1998, that siltation in the vault reduces storage

volume, so it is "required that cleaning be done every six (6)

months." The report suggests the removal of grass clippings from

the parking area, so that they are not transported to the

retention vault. The report suggests that the underdrain system

should be backflushed periodically, and the control structure

should be checked monthly and all debris cleared.

1. In general, the system would collect runoff from the

roof downspouts and parking area. The system would provide

treatment of the first 1/2 inch of runoff by capturing it in the

vault, where it would filter through a layer of several cubic

feet of sand before entering a perforated pipe leading to the

City stormwater sewer. Runoff from rainfall in excess of the

first 1/2 inch would receive little, if any, treatment.

2. It is implicit that the first 1/2 inch of rainfall

contains the first flush of contaminants from impervious

surfaces. Nothing in the record specifies the efficacy of

treatment provided by this standard, although it obviously is

less than 100 percent efficient because of the higher standard

imposed upon systems discharging into Outstanding Florida Waters

(OFW).

3. However, a pre- and post-development analysis of the

runoff from the subject parcel would reveal an unknown additional

volume of runoff from the developed site, due to the replacement

of pervious surface with impervious surface. It is unclear

whether the developed site would generate a reduced volume of

sediments in this increased volume of runoff. Although little

vegetated surface would exist post-development, the record does

not reveal the extent to which the pre-development pervious area

fails to capture the sediments prior to their entering the City

stormwater system.

4. More problematic are the automobile-related

contaminants, such as oil and grease, that will be introduced

into the runoff by the developed site. Presumably, the runoff

from the undeveloped site contains few, if any, such

contaminants. Thus, any automobile-related contaminants

discharged from the surface water management system would likely

be an increase from the amount of such contaminants presently

discharged from the site.

5. The runoff from the developed site would enter the City

of Saint Petersburg stormwater sewer system and would be released

in the nearby Tampa Bay. The record does not disclose the

stormwater sewer line transporting the discharge, nor the outfall

of the line into Tampa Bay.

6. By stipulation, the parties agreed that Tampa Bay is an

OFW and that discharge from the developed site would enter the

City of Saint Petersburg stormwater sewer system. Tampa Bay is

classified as Class II waters, which are approved for shellfish

harvesting.

7. The record does not disclose the point of discharge of

the City stormwater line that would receive discharge from the

developed site. However, the proximity of the site to Tampa Bay

strongly suggests that the outfall would be in Tampa Bay, and it

is only slightly less probable that the outfall would be at a

point in the bay in the immediate vicinity of the site.

8. The record suggests that the waters of Tampa Bay likely

to receive the discharge from the site are impaired. For

example, water quality conditions mandated the closing of "Lower

Tampa Bay" to shellfish harvesting, for an unstated period of

time, effective at sunset on July 5, 1999. Also, the Department

of Environmental Protection listed two bayous in the immediate

vicinity of the site as noncompliant with federal water quality

standards due to excessive coliform bacteria counts and nutrients

and insufficient levels of dissolved oxygen.

9. The Basis of Review (BOR) is a document adopted by the

District. It contains specific "criteria" for permitting.

However, as BOR Section 1.3 explains, the goal of these criteria

is to meet District water resource objectives, and the criteria

are "flexible." Alternative methods of meeting "overall

objectives" may be acceptable, depending upon the "magnitude of

specific or cumulative impacts."

10. The criteria, which are flexible, are the means by

which the District assures that it meets its objectives, which

are not flexible. BOR Section 3.1.0 recognizes that "a wide

array of biological, physical and chemical factors affect the

functioning of any wetland or other surface water community.

Maintenance of water quality standards in applicable wetlands and

other surface waters is critical to their ability to provide many

of these functions."

11. BOR Section 3.1.0 elaborates: "It is the intent of the

Governing Board [of the District] that the criteria in

subsections 3.2 through 3.2.8 be implemented in a manner which

achieves a programmatic goal and a project permitting goal of no

net loss of wetlands or other surface water functions."

12. BOR Section 3.1.1 requires that an applicant provide

"reasonable assurance" of several things. BOR Section 3.1.1(a)

requires that "a regulated activity will not adversely impact the

value of functions provided to fish, wildlife and listed species,

including aquatic and wetland dependent species, by wetlands and

other surface waters and other water related resources of the

District. (paragraph 40D-4.301(1)(d), F.A.C.) (see subsection

3.2.2)."

13. BOR Section 3.1.1(c) provides that:

a regulated activity 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 any

antidegradation provisions of Sections

62 -4.242(1)(a) and (b), 62-4.242(2) and (3),

and 62-302.300 and any special standards for

Outstanding Florida Waters . . . set forth in

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

violated (paragraph 40D-4.301(1)(e), F.A.C.).

14. BOR Section 3.1.1(d) provides that "a regulated

activity . . . located in close proximity to Class II waters

. . . will comply with the additional criteria in subsection

3.2.5 (paragraph 40D-4.302(1)(c), F.A.C.)."

15. BOR Section 3.1.l(f) provides that "a regulated

activity will not cause adverse secondary impacts to the water

resources (paragraph 40D-4.301(1)(f), F.A.C.) (see subsection

3.2.7)."

16. BOR Section 3.1.1(g) provides that "a regulated

activity will not cause adverse cumulative impacts upon wetlands

and other surface waters . . . (paragraph 40D-4.302(1)(b),

F.A.C.) (see subsection 3.2.8)."

17. BOR Section 3.2.4 provides that an applicant must

provide "reasonable assurance that the regulated activity will

not violate water quality standards in areas where water quality

standards apply. . . . The following requirements are in

addition to the water quality requirements found in Chapter 5."

18. BOR Section 3.2.4.2(c) provides that the applicant must

address the long-term water quality impacts of a proposed system,

including "prevention of any discharge or release of pollutants

from the system that will cause water quality standards to be

violated."

19. BOR Section 3.2.5 provides:

The special value and importance of shellfish

harvesting waters to Florida's economy as

existing or potential sites of commercial and

recreational shellfish harvesting and as a

nursery area for fish and shell fish is

recognized by the District. In accordance

with section 3.1.1.(d), the District shall:

(b) deny a permit for a regulated activity

in any class of waters where the location of

the system is adjacent or in close proximity

to Class II waters, unless the applicant

submits a plan or proposes a procedure which

demonstrates that the regulated activity will

not have a negative effect on the Class II

waters and will not result in violations of

water quality standards in the Class II

waters.

20. BOR Section 3.2.7 provides that an applicant must

provide "reasonable assurance" that "a regulated activity will

not cause adverse secondary impacts to the water resource" as

described in this section. However, this section explicitly

disregards negligible or remotely related secondary impacts.

21. BOR Section 3.2.8 provides that an applicant must

provide "reasonable assurance" that "a regulated activity will

not cause unacceptable cumulative impacts upon wetlands and other

surface waters . . .."

22. BOR Section 4.2 limits off-site discharge "to amounts

which will not cause adverse off-site impacts." For a proposed

activity within an open drainage basin, as is the subject

proposed activity, the allowable discharge is (presumably the

greatest of) any amount determined in previous District permits,

the legally allowable discharge at the time of the permit

application, or historic discharge. Historic discharge is the

peak rate at which runoff leaves a parcel of land by gravity

under existing site conditions.

23. BOR Section 5.1 requires that proposed discharges meet

applicable state water quality standards. This chapter of the

BOR requires that proposed systems satisfy certain quantitative

criteria, depending on the type of water treatment system.

However, BOR Section 5.1 warns:

in certain instances a design meeting those

standards may not result in compliance with

the state water quality standards referenced

above. Unless an applicant has provided

reasonable assurance that a design will not

cause or contribute to a violation of state

water quality standards, the District may

apply more stringent design and performance

standards than are otherwise required by this

chapter.

Projects designed to the criteria found in

this section shall be presumed to provide

reasonable assurance of compliance with the

state water quality standards referenced

above. . . .

24. BOR Section 5.2 sets quantitative criteria for various

types of surface water management systems. The subject system is

a detention, on-line treatment system.

25. BOR Section 1.7.5 defines "detention" as the "delay of

storm runoff prior to discharge into receiving waters." BOR

Section 1.7.28 defines "on-line treatment system" as a "dual

purpose system that collects project runoff for both water

quality and water quantity requirements. Water quality volumes

are recovered through percolation and evaporation while water

quantity volumes are recovered through a combination of

percolation, evaporation, and surface discharge."

26. BOR Section 5.2.b applies to "[d]etention with effluent

filtration system (manmade underdrains)." BOR Section 5.2.b.1

provides that proposed activities draining less than 100 acres

"shall treat the runoff from . . . the first one-half inch

runoff." BOR Section 5.2.b.6 adds: "Maintenance of filter

includes proper disposal of spent filter material."

27. BOR Section 5.2.c applies to "on-line treatment

system[s]." This section also requires the treatment of the

first one-half inch of runoff.

28. However, BOR Section 5.2.e provides:

Projects discharging directly into

Outstanding Florida Waters (OFW) shall be

required to provide treatment for a volume 50

percent more than required for the selected

treatment system . . ..

29. Applicant has provided reasonable assurance that the

proposed surface water management system would not cause adverse

water quantity impacts to receiving waters and adjacent lands and

would not cause flooding.

30. In terms of water quantity, the proposed system is

designed to meet the requirements of the ten-year storm. The

subject site is a short distance from Tampa Bay, and, as already

noted, it is very likely that the runoff discharges into Tampa

Bay at a location not far from the subject site. Thus, water

quantity and flooding are irrelevant to this case.

31. However, Applicant has not provided reasonable

assurance that the proposed surface water management system would

not cause adverse impacts to the value of functions provided to

fish and wildlife by nonwetland surface waters and would not

adversely affect the quality of receiving waters.

32. The receiving waters of the discharge from the subject

site are Class II waters that are OFW. However, these waters are

also impaired sufficiently as to be in violation of certain

federal water quality standards and to require the closure, at

least at times, of shellfish harvesting.

33. There are three deficiencies in the proposed permit.

First, it does not specify, in clear and enforceable language, an

inspection and maintenance program, which includes the

undertaking by the Applicant to backwash the system at specified

intervals, to replace the sand filtration medium at specified

intervals, to dispose of the sand filtration medium so that the

captured contaminants do not reenter waters of the state, to

monitor the water discharged from the oil and grease skimmer at

specified intervals following the first two years' monitoring,

and generally to take any necessary action to correct

deficiencies uncovered from inspections.

34. Second, the treatment of the first 1/2 inch of runoff

is insufficient for the system, which is discharging directly

into an OFW. BOR Section 5.2.e raises this standard to 3/4 inch.

35. Direct discharges requires the identification of the

first receiving waters. Receiving waters are waters of the state

that are classifiable as Class I-V waters. Receiving waters thus

do not include waters in a stormwater sewer pipe, which are not

waters of the state nor are they classifiable.

36. Water quality determinations often require comparison

of the quality of the discharged water with quality of the

receiving waters. The off-site piping of the discharged water

does not preclude such comparison. In such case, the analysis

extends to the first receiving waters into which the pipe

empties.

37. The District's argument to the contrary invites

circumvention of those provisions enacted and promulgated for the

protection of OFWs. For example, several owners of land abutting

an OFW could establish a jointly owned stormwater sewer line so

that the point of comparison for their discharge would be the

waters in the pipe rather than the OFW.

38. Third, Applicant failed to submit a plan or propose a

procedure demonstrating that the proposed activity would not have

a negative effect on the Class II waters of Tampa Bay and would

not result in violations of water quality standards in these

Class II waters.

39. The District failed to determine the outfall of the

discharge from the subject site, so it failed to enforce the

requirement of the plan required by BOR 3.2.5 for the protection

of the special value of Class II waters.

40. Although required to account for cumulative impacts,

the plan will necessarily reflect the characteristics of the

site--e.g., 1.6 acres contributing largely automobile-based

contaminants and not nutrients--and the characteristics of the

receiving waters--e.g., Tampa Bay is vast and relatively

impaired, though, in the vicinity of the subject site, more

likely due to excessive nutrients.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

55. Applicant has the burden of proving its entitlement to

the ERP. Department of Transportation v. J. W. C. Company, Inc. ,

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

56. Section 373.414 generally provides that an applicant

must show that its proposed activity will not be harmful to the

water resources or inconsistent with the objectives of the

District.

57. Rule 40D-4.091(1) incorporates the BOR into Chapter

40D-40.

58. Rule 40D-4.301(1) requires that, to obtain a standard,

general, or conceptual permit, an applicant must provide

reasonable assurance that the construction, operation, and

maintenance of a surface water system:

(a) will not cause adverse water quality

impacts to receiving waters and adjacent

lands;

(b) will not cause adverse flooding to on-

site or off-site property;

(d) will not adversely impact the value of

functions provided to fish and wildlife, and

listed species including aquatic and wetland

dependent species, by wetlands, other surface

waters and other water related resources of

the District;

(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 any 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 be violated; [and]

(f) will not cause adverse secondary impacts

to the water resources.

59. Rule 40D-4.301(2) provides: "If the applicant is

unable to meet water quality standards because existing ambient

water quality does not meet standards, the applicant shall comply

with the requirements set forth in Section 3.2.4.5 of the Basis

of Review."

60. Rule 40D-4.301(3) provides: "The standards 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."

61. Rule 40D-4.302(1) provides additional requirements,

including that a system:

(b) Will not cause unacceptable cumulative

impacts upon wetlands and other surface

waters . . ..

(c) Located in, adjacent to or in close

proximity to Class II waters or located in

Class II waters or Class III waters

classified by the Department as approved,

restricted or conditionally restricted for

shellfish harvesting pursuant to Chapter 16R-

7, F.A.C., will comply with the additional

criteria in subsection 3.2.5 of the Basis of

Review for Environmental Resource Permit

Applications adopted by reference in Section

40D-4.091, F.A.C.

62. Rule 40D-40.301(1) provides that, to obtain a standard

general permit, an applicant must provide reasonable assurance

that:

(f) Discharges from the site will meet state

water quality standards;

(h) The proposed activities do not cause

significant adverse impacts to occur

individually or cumulatively;

(j) The surface water management system will

meet the applicable water quality design

criteria in the Basis of Review described in

Rule 40D-4.091(1).

63. Rule 40D-40.302(1)(a) provides that the surface water

management system must meet the conditions specified in Rules

40D-4.301 and 40D-4.302.

64. Due to the failure to address the three items set forth

at the end of the Findings of Fact, Applicant has failed to

provide the necessary reasonable assurance that its proposed

system is entitled to an ERP.

RECOMMENDATION

It is

RECOMMENDED that the Southwest Florida Water Management

District enter a final order denying the ERP application of HBJ

Investments, Inc.

DONE AND ENTERED this 23rd day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of December, 1999.

COPIES FURNISHED:

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

John R. Thomas

Wyckoff & Thomas, P.A.

233 Third Street North, Suite 102

Saint Petersburg, Florida 33701

Michael Jacobs

Director, Legal Affairs

25 Second Street North, Suite 160

Saint Petersburg, Florida 33701

Anthony J. Mutchler

Assistant General Counsel

Southwest Florida

Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 must be filed with the agency that will

issue the final order in this case.