IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ST. JOHNS RIVER WATER MANAGEMENT

DISTRICT AND CEDAR ISLAND HOMEOWNERS’

ASSOCIATION OF FLAGLER COUNTY, INC., 

Petitioners, 

v. Case No. 5D22-2426 

LT Case Nos. 21-3391 

2021-33

EDWARD J. CECE AND ANNA M. CECE, 

Respondents. 

________________________________/

Opinion filed August 11, 2023

Petition for Review of Nonfinal

Administrative Action,

A Case of Original Jurisdiction.

Jessica P. Quiggle and Steven J. 

Kahn, of, for Petitioner, St. Johns River 

Water Management District. 

Jay W. Livingston, of Livingston & 

Sword, P.A., Palm Coast, for Petitioner, 

Cedar Island Homeowners’ Association

of Flagler County, Inc.

Edward J. Cece and Anna M. Cece, 

Flagler Beach, pro se.
2

EDWARDS, C.J., 

On Motion for Written Opinion

We previously denied the Joint Petition for Review of Non-Final 

Agency Action filed by Petitioner, St. Johns River Water Management District 

(“the District”), and Petitioner, Cedar Island Homeowners’ Association of 

Flagler County, Inc. (“the HOA”; while “the development” or “Cedar Island” 

refers to the subdivision the HOA controls) relating to the Administrative Law 

Judge’s (“ALJ”) Order Following Remand dated September 9, 2022. The 

underlying case dealt with a stormwater management system permit, the 

Dash 9 Permit,1 sought by the HOA from the District, which would increase 

the permissible allowable impervious surface area,

2 within the development 

1 The development’s stormwater management system was originally 

authorized by the District’s Permit 70686-1 in 2001. Subsequent permits 

have been issued by the District to transfer ownership of the stormwater 

management system to another developer and ultimately to the HOA. Each 

amended permit bears the same first five digits, and only the digit after the 

dash changes, hence the reference to Permit 70686-4 as the Dash 4 Permit, 

the fourth amended permit, which was issued in 2005 and transferred the 

operation and maintenance of the stormwater management system to the 

HOA. The Dash 9 Permit (Permit 70686-9) would be the ninth permit for this 

system and it would amend the Dash 4 Permit if granted.

2 Impervious surfaces are artificial surfaces that water cannot naturally 

percolate through or penetrate. Concrete sidewalks and patios, asphalt 

paved roads, metal, and roofing shingles are examples of impervious 

surfaces. Water striking an impervious surface will run off, potentially 

causing damage such as flooding or pollution if not properly managed.
3

to 44.28% from the originally permitted 38.06%. We grant the District’s 

motion for a written opinion, but we still deny the petition for the reasons set 

forth below.

Development Status of Cedar Island

Cedar Island was developed as a 32-lot residential subdivision. As of 

December 2021, shortly before the underlying February 2022 formal 

administrative hearing, 18 homes had been fully constructed, three were 

under construction, and 11 lots were undeveloped. Some lot owners of 

Cedar Island were concerned that continued development and building in the 

subdivision would increase the impervious surface area beyond what the 

stormwater system could manage and for which it had been permitted. 

Those owners worried that continued development might result in flooding 

within the subdivision among other problems. 

Cedar Island’s Stormwater Management System

The development’s stormwater management system consists of two 

interconnected, wet detention ponds (A and B) together with a series of 25-

foot-wide vegetative natural buffers (“VNB”) located within a conservation 

easement running along the rear of many lots in the development. The 

Increasing the amount of impervious surfaces through continued 

development of the subdivision will increase the volume of stormwater runoff 

that must be handled by Cedar Island’s stormwater management system.
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detention ponds perform two functions: treatment and storage of stormwater 

runoff. A simplified explanation of treatment is that the longer dirty 

stormwater remains in one of the detention ponds, the cleaner it gets, as 

particulates and sediments suspended in the water tend to descend to and 

remain near or on the bottom of the pond. 

The ponds also store water to avert flooding, a direct function of their 

volume. Once the ponds are full, they begin releasing water in a desirable 

direction through an opening at the upper edge of the pond called a weir.

The effective storage volume of each detention pond is determined by its 

dimensions, including its depth, and by the height at which the weir is located 

together with the size of the weir. All things being equal, the lower the 

elevation of the weir, the sooner water will be released, while the wider the 

opening of the weir, the greater flow of water will be released. The treatment 

and storage functions of the ponds work together to limit pollution and 

flooding caused by stormwater running off impervious surfaces within the 

development.

Dash 9 Permit Involved Re-Calculations Only

In its 2020 application for the Dash 9 Permit, the HOA did not say or 

propose that it was going to make any physical changes to the structure or 

composition of the existing stormwater management system, nor did the 
5

District require alterations as a condition for issuance of the permit. Instead, 

the HOA simply submitted a recalculation, performed by its retained 

engineering expert, purporting to demonstrate that the stormwater system as 

designed and permitted in 2001 could effectively manage an increased load 

associated with a greater amount and percentage of impervious surface area 

which would generally mean more stormwater runoff that wouldn’t soak into 

green spaces but would go to the existing stormwater system. The HOA’s 

engineering expert did not base any of his calculations on the existing 

system.

What Did They Know, and When Did They Know It?

As part of its application for the Dash 9 Permit, the HOA submitted 

certain as-built plans created in 2002 when Cedar Island’s stormwater 

management system was actually constructed. Those as-built plans 

demonstrated that the stormwater management system, as actually 

constructed, deviated in several significant ways from the originally permitted 

design. For example, the detention ponds were considerably shallower than 

designed. Pond A was constructed to a depth between -4.2 to -4.7 feet, 

instead of the designed -6 feet. Pond B was constructed to a depth of -4.3 

feet instead of the designed -8 feet. The crested elevation of the weir was 

constructed several inches lower than designed and the weir itself was 
6

constructed to a width of only 24 feet instead of 40 feet as set forth in the 

design of the originally permitted system. These as-built deviations, 

individually and in combination, decrease the amount of stormwater which 

the development’s stormwater management system could effectively handle, 

compared to the system as it was designed and originally permitted in 2001. 

No current survey of the components of the stormwater management system 

was provided by anybody. Inexplicably, the HOA’s expert testified that he 

was unaware of any differences between the current system and the asdesigned system. All his calculations were based solely on the non-existent, 

as-designed stormwater management system. The HOA possessed the asbuilt plans all along; thus, the construction shortfalls cannot be considered a 

surprise to the HOA or the District as though it happened to come up 

sometime late in the process.

Additionally, in connection with the HOA’s application for the Dash 9 

Permit, the District conducted an inspection of Cedar Island’s existing 

stormwater management system and found several compliance issues, such 

as (1) accumulation of sediment in both detention ponds; (2) erosion of the 

top of the berm elevation for both ponds; and (3) numerous areas where the 

series of 25-foot wide VNBs had been cleared or modified, which reduced 

their performance. The District considered those three items to be curable 
7

by maintenance-type actions. The District noted that the HOA could 

undertake compliance with the maintenance issues on a parallel basis and 

time frame with applying for the increased percentage of impervious 

surfaces. The District’s Technical Staff also noted that some of the homes 

included an impervious footprint larger than accounted for in the original 

design. Thus, the HOA and District knew well before the administrative 

hearing that the existing system and the as-designed system were 

remarkably different in many structural and functional regards. 

Objections to Issuance of the Dash 9 Permit

Two Cedar Island owners opposed issuance of the Dash 9 Permit 

based primarily on their concern that continued development could 

overwhelm the development’s stormwater management system and result in 

problems. They requested an administrative hearing to formally contest the 

application and issuance of the permit. Another owner later intervened, 

joining the opposition to issuance of the Dash 9 Permit.

During the ensuing administrative hearing conducted by a duly 

appointed ALJ from the Department of Administrative Hearings, the HOA 

presented the testimony of its expert who performed calculations of what the 

as-designed stormwater system could theoretically manage and concluded 

that it would function properly even if the impervious surface area percentage 
8

within the development was increased to 44.28% from the originally 

permitted 38.06%. The HOA’s expert had not based his calculations on the 

stormwater management system that currently, actually existed in Cedar 

Island nor had he considered the deviations from the system’s design noted 

in the 2002 as-built plans. The objecting homeowners presented the 

testimony of their engineering expert who opined that one could not

accurately calculate what water load and what percentage of impervious 

surfaces the Cedar Island stormwater system could handle unless the 

system’s current status and the deviations from design were considered.

Why Ignore the Obvious?

The evidence introduced at trial demonstrated that Cedar Island’s 

existing stormwater management system was smaller than designed and 

originally permitted. That smaller system was already handling a larger load 

at that stage of development than anticipated, and it needed maintenance of 

all its features. Nobody provided calculations as to the ability of Cedar 

Island’s current system to manage the existing stormwater runoff, nor did 

anybody provide calculations as to whether the current system could 

manage the proposed, increased load associated with the increased 

percentage of impervious surface areas. 
9

In order to obtain the Dash 9 Permit, the HOA was required to provide 

“reasonable assurance” that the stormwater management system would 

satisfy the applicable criteria set forth in rule 62-330.301 and rule 62.330-

302 of the Florida Administrative Code, and Volumes I and II of the 

Environmental Resource Permit Applicant’s Handbook. “Reasonable 

assurance” has been defined as “a substantial likelihood that the project will 

be successfully implemented.” Metro. Dade Cty. v. Coscan Fla., Inc., 609 

So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable assurance does not call 

for absolute guarantees, nor can proof of reasonable assurance be defeated 

solely by speculation or subjective concerns. FINR II, Inc. v. CF Indus., Inc.,

Case No. 11-6495 (Fla. DOAH Apr. 30, 2012; Fla. DEP June 8, 2012). 

Following the conclusion of the formal administrative hearing, the 

parties submitted proposed recommended orders and on May 2, 2022, the 

ALJ issued a recommended order.

ALJ Recommends the District Deny the Dash 9 Permit

Ultimately, the ALJ agreed with the objecting homeowners, finding that 

the HOA had not carried its burden of providing “reasonable assurance” that 

its proposal would comply with applicable rules. The ALJ cited to rule 62-

330.301(1)(b), Florida Administrative Code, which requires that construction, 

operation, and maintenance of the project will not cause adverse flooding to 
10

on-site or off-site property. The ALJ also cited to rule 62-330.301(1)(c), 

which requires that there be no “adverse impacts to existing surface water 

storage and conveyance capabilities.” Although the HOA’s expert testified 

that in his opinion there would be no such adverse consequences, the ALJ 

considered, but rejected those opinions due to “deficiencies in the modeling.” 

The HOA’s Dash 9 application was based on theoretical calculations of a 

system that did not exist at the time of the hearing, that had never existed, 

and that was not being proposed as new or modified construction now by the 

HOA. While the ALJ acknowledged the District’s argument that the HOA 

could bring the system into compliance, it also noted that the HOA “never 

expressed any definitive intent that it would bring the system to its design

specifications.” Further, the ALJ stated in the recommended order that it was 

the responsibility of the applicant, not the District, to provide the requisite 

reasonable assurances.

Post-Hearing Proceedings

The parties filed exceptions to portions of the ALJ’s recommended 

order which the District considered and ruled upon in its Final Order and 

Order of Remand. In that order, the District took exception to the ALJ’s 

conclusion that calculations regarding the stormwater management system 

must be modeled based on its current condition, rather than the proposed 
11

condition. The District and the HOA asserted that the ALJ improperly applied 

the analysis called for under rule 62-330.301(1)(a), (b) and (c) and that rule 

62-330.302 was not at issue in this case.

To summarize the District’s lengthy argument on this point, it noted that 

if there were issues of non-compliance or violations of the existing Dash 4 

Permit, one should consider whether the proposed modifications would 

resolve those problems. However, the only modification proposed here was 

a new set of calculations. There was no proposal by the HOA to change the 

physical condition of any part of the existing system. There was no 

suggestion that the HOA had any intention of revising the as-built, noncompliant existing system so as to resemble the non-existent, as-designed 

system that its expert relied upon. As already noted, the HOA’s expert never 

performed any calculations to determine if the current system could handle 

either the current or the proposed increased runoff load. A computer with 

software is no substitute for excavation equipment when it comes to making 

ponds that were too shallow 20 years ago—before being silted in—deep 

enough to comply with the original design that was permitted.

The District’s order remanded the case to the ALJ, directing it to make 

findings of fact and conclusions of law based on the “proposed” project rather 

than on the “existing” system. In other words, the District remanded for the 
12

ALJ to proceed on the assumption that the stormwater management system 

in question was the one described in the 2001 design plan that was originally 

permitted. The District stated that with any permit application, you don’t look 

at the current condition because typically the application is for a “proposed

system” that is going to be built or the physical modification of an existing 

system. Here, there was no such “proposed system.”

The District’s remand order included a hypothetical situation in which 

an applicant’s current system was in place and was independently 

permittable, despite the fact that the current system, as built, did not comply 

with the design submitted and originally permitted. In its hypothetical, the 

District bemoans that this hypothetical applicant would have to deconstruct 

its existing, desirable stormwater system, that was demonstrated to be 

permittable, just to comply with the original permit. Of course, that 

hypothetical situation has nothing to do with this case, because the HOA 

never attempted to demonstrate that its current system, as-built rather than 

as-designed, would be eligible for permitting. The HOA’s expert prepared 

no calculations as to whether Cedar Island’s existing system would be 

permittable. Thus, the District’s hypothetical fact pattern underscores why 

the Dash 9 Permit should be denied here as there were no reasonable 
13

assurances of any existing or proposed system that was going to be 

constructed at Cedar Island that would be permittable.

ALJ’s Ruling on Remand

The ALJ issued an order following remand in which the remand order 

was acknowledged, but the ALJ declined to accept the District’s premise that 

the application for the Dash 9 Permit was to be considered as though the 

non-existent, never-existing system designed in 2001 was in place. The ALJ 

further rejected the District’s directive that the ALJ consider the application 

as though the 2001 as-designed system would be put in place at some 

indeterminate time, because the HOA had not proposed to do so. The HOA 

was just doing a numbers submission of recalculations based on the asdesigned system, not the as-built, much less the current system. Thus, the 

ALJ did not reject the remand; however, there was no “proposed project” 

which could be analyzed in accordance with the remand order.

Current Appellate Review

The District and HOA sought appellate review from this Court. Section 

120.68(1)(b), Florida Statutes (2022), provides: 

A preliminary, procedural, or intermediate order of 

the agency or of an administrative law judge of the

Division of Administrative Hearings is immediately

reviewable if review of the final agency decision

would not provide an adequate remedy.
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The scope of appellate review under that provision is “‘analogous to, and no 

broader than the right of review by common law certiorari.’” CNL Resort 

Hotel, L.P. v. City of Doral, 991 So. 2d 417, 420 (Fla. 3d DCA 2008) (quoting 

Fla. Dep’t of Fin. Servs. v. Fuggett, 946 So. 2d 80, 81 (Fla. 1st DCA 2006)). 

“On certiorari review, a petitioner must demonstrate that the lower court 

‘departed from the essential requirements of the law, thereby causing 

irreparable injury which cannot be adequately remedied on appeal following 

final judgment.’” Id. (quoting Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 

2000)). If a decision following remand by an ALJ leaves the parties at an 

impasse, the appellate court must resolve the issue because there is no 

other remedy. See Ag. for Health Care Admin. v. Mount Sinai Med. Ctr. of 

Greater Miami, 690 So. 2d 689, 693 (Benton, J., concurring) (“With the 

Administrative Law Judge (ALJ) within the Division of Administrative 

Hearings (DOAH) and the Agency for Health Care Administration (AHCA) at 

an impasse, the litigants have no other forum.”).

The District and the HOA assert that this Court has jurisdiction because 

the Agency cannot issue a final order on whether to issue the Dash 9 Permit, 

given that the ALJ’s Second Order does not make the additional factual 

findings requested by the District. At issue is whether the ALJ’s Second 

Order departs from the essential requirements of the law resulting in 
15

irreparable harm in the form of a “stalemate” that leaves the parties at an 

impasse, as alleged by the District and the HOA.

No Departure from the Essential Requirements of Law

The ALJ, in the initial recommended order and the order following 

remand, was required to base findings of fact and conclusions of law on 

competent, substantial evidence. In both orders, the ALJ determined that 

Cedar Island had not proved that the existing stormwater management 

system met the requirements for issuance of the Dash 9 Permit. The District 

acknowledged in its remand order that the ALJ had made those findings and 

they were supported by competent, substantial evidence. 

The permit application that the District wants the ALJ to reconsider 

simply does not exist. The District’s remand order to the ALJ and its 

arguments before this Court assume one of two things: (1) that the HOA has 

proposed in its Dash 9 Permit application to construct or modify its existing 

system to bring it into compliance with the original design and original permit,

or (2) that Cedar Island’s exiting stormwater management system can be 

permitted without change. But neither circumstance exists. The HOA did not 

propose in its application to bring the existing system into compliance with 

the original design or to construct an otherwise permittable system. Thus, 

there simply was no “proposed system” for the ALJ to consider as an 
16

alternative to Cedar Island’s existing system. The HOA included its as-built 

plans which demonstrated beyond dispute that the existing system did not 

replicate the system as designed and the HOA knew it. Accordingly, there 

was no departure from the essential requirements of the law when the ALJ 

did not make findings of fact regarding any “proposed system” and concluded 

that the HOA, which offered no evidence about its current system, had 

neither proposed any construction nor provided reasonable assurance that 

the existing system could handle an increased percentage of impervious 

surfaces. 

No Stalemate and No Irreparable Harm

The District and HOA argue that unless we remand the matter to the 

ALJ with instructions to make the findings of fact relating to the non-existent 

“proposed system,” the District will be unable to issue a final order. That is 

not correct. As the record stands now with the findings of the ALJ, the District 

can enter its final order either granting or denying the HOA’s Dash 9 Permit. 

What the District cannot do in the proceeding before this Court is to have the 

case remanded for the ALJ to consider an application in a form and with 

information that was never submitted and to render findings of fact and 

conclusions of law on evidence that was not offered during the formal 

administrative hearing. 
17

The HOA has argued that the matter could be remanded for additional 

presentation of evidence regarding whether its existing stormwater

management system can effectively handle not only the current stormwater 

load, but the increased load that would result by increasing the percentage 

of impervious surfaces. Overlooking the fact that the HOA did not make that 

proposal in its application nor in the underlying case, that would require 

reopening the case with additional evidence presented by the HOA, the 

District, and the objecting homeowners. It would require further hearings, a 

further recommended order from the ALJ, further exceptions from the 

parties, and perhaps would cumulate in a final order from the District which 

would still be subject to an appeal. That untenable situation was perfectly 

described as “endless litigation” which the First District observed was not the 

intent of the Administrative Procedures Act. See Fla. Dep’t of Transp. v. 

J.W.C. Co., 396 So. 2d 778, 784 (Fla. 1st DCA 1981). The HOA here made 

the choice to offer recalculations only and has never proposed to either bring 

its existing system into compliance with the original design or offer 

reasonable assurance that its current system is permittable.

Conclusion

Accordingly, we deny the District and the HOA’s petition, and remand 

to the District for entry of a final order either issuing or denying the HOA’s 
18

application for the Dash 9 Permit, which Agency decision can then be 

appealed if the losing parties choose to do so. 

MOTION GRANTED, PETITION DENIED; REMANDED TO THE 

AGENCY WITH INSTRUCTIONS. 

LAMBERT and HARRIS, JJ., concur.