STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2040

) DESERET RANCHES OF FLORIDA, INC.,)

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Melbourne and Tallahassee, Florida, on March 5-7, 14 and 15, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Segundo J. Fernandez, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Philip W. Watson, Esquire

17th Floor CNA Building Post Office Box 231 Orlando, Florida 32802

ISSUE PRESENTED

Whether Petitioner should take enforcement action against Respondent for alleged violations of Chapter 403, F.S., and Chapter 17, F.A.C., as set forth in Notice of Violation and Orders for Corrective Action, dated September 4, 1978.

FINDINGS OF FACT

1. Respondent Deseret Ranches of Florida, Inc., (Deseret), a wholly owned subsidiary of the Church of Jesus Christ of Latter Day Saints, conducts agricultural and ranching operations on approximately 283,000 acres of land owned by the Church which is located in parts of Orange, Osceola, and Brevard Counties. Over 80 percent of the acreage consists of unimproved and semi- improved pasture or range land, and the remainder is utilized for production of sod, clover, and citrus. Citrus production involves the use of 1800 acres. An average cattle herd of 44,500 head is maintained on the pastureland with an average density of 5.4 acres per head. Some 104,000 acres consists of lowlands which are subjected to periodic flooding. This land is located a short distance to the west of the St. Johns River and over 60,000 acres are channelized with canals, ditches, and dikes to improve drainage in order that the pastureland will remain relatively dry in periods of excessive rainfall. To prevent water

   in the interior canals from flooding the land, pumping stations are located at a number of points which periodically discharge water from the interior canals into larger canals which flow into the St. Johns River. Both diesel and electrically operated pumps are used for this purpose. There are also canals which discharge by gravity flow to the St. Johns River. Deseret Ranch is divided into north and south areas that are separated by land owned by others.

   The northern portion is bordered on the east by the North Mormon Outside Canal which parallels the St. Johns River. The southern portion is bordered on the east by the South Mormon Canal which also parallels the St. Johns River. The Bulldozer Canal forms the northern border of the southern portion of the ranch. The latter two canals meet at the northeastern corner of the southern area at the St. Johns River.

   
   

2. The ranch has a number of artesian wells which are used primarily for providing water for stock and for agricultural irrigation during dry periods of the year. The St. Johns River Water Management District has authorized an annual allocation of 2522 million gallons of ground water per year for these purposes. (Testimony of Dahl, Petitioner's Exhibits 26, 27, 35, Respondent's Exhibit 1)

   
   

3. On January 7, 1976, a Department of Environmental Regulation (DER) biologist observed turbidity at the southern end of Lake Hellen Blazes which is in the St. Johns River near the confluence of the Bulldozer and South Mormon Canals. He determined that a Deseret operating pump discharging into Bulldozer Canal was the cause of the turbid water. Water samples taken at various points upstream and downstream from the discharge were analyzed and showed violations of state water quality standards relating to turbidity. DER thereafter advised Respondent to apply for a temporary operating permit for the discharges from the ranch, but it declined to so. At informal meetings during 1976, Respondent explained that the turbidity problem had arisen during a time when interior canals were being cleaned and it was necessary for the pump to be placed into operation to move out the water in order that a dragline operator could accomplish the cleaning task. Respondent agreed at these meetings not to operate its pumps in the future when cleaning canals and there have been no observable turbidity violations since that time. (Testimony of Cormier, Dahl, Hulbert, Petitioner's Exhibits 1, 2, 31, 32-34, Respondent's Exhibit 6)

   
   

4. On July 25, 1978, a fish kill in the vicinity of Camp Holly near U.S. Highway 192 was reported to DER personnel. Camp Holly is a fish camp located approximately eight to ten miles north of Bulldozer Canal on the St. Johns River. About 30 dead fish were observed around Camp Holly and several more between that location and Bulldozer Canal. Investigation disclosed that pumps at two stations on the Bulldozer Canal were in operation on that day, and water samples taken upstream and downstream of the operating pumps showed dissolved oxygen levels ranging from 1.8 mgs to 2.8 mgs per liter. A dragline was observed in an interior canal on the Deseret Ranch, but it is unknown if it was then in operation. The St. Johns River was high in 1978. (Testimony of Hadley, Cataldo, Auth, Petitioner's Exhibits 3, 4, 4A, 25, Respondent's Exhibit 5)

   
   

5. The flood plain of the St. Johns River South of Lake Washington has decreased significantly over the years due, in part, to the fact that large areas are now behind dikes in order that the land may be used for various agricultural purposes. To maintain low water levels in these reclaimed areas, extensive canal and pumping systems have been installed to remove excess water. Conversion of an area from natural conditions to agricultural use increases pollutant loading of receiving waters from the use of fertilizer and pesticides. Disturbances of the land surface by removal of natural cover and modifications

   of natural drainage patterns reduce the detention time of storm water flow to the St. Johns River and the natural assimilative or purification processes of the original system. (Testimony of Sullivan, Cox, Petitioner's Exhibit 24)

   
   

6. Water quality parameters that could potentially be influenced by the pumping activities of Respondent include turbidity, dissolved oxygen, biological oxygen demand (BOD) , specific conductance, chlorides, total phosphorus and total nitrogen. Available data concerning water quality in the upper St. Johns River include bimonthly water sampling by personnel of the Florida (came and Fresh Water Fish Commission from 1973 to 1976 at 24 stations, irregular sampling by DER personnel from 1975 to 1978 primarily in the Blue Cypress Lake region, and sampling in the summer of 1978 and in January, 1979 by DER and a consulting firm employed by Respondent. The collective data obtained show that the waters in the upper St. Johns River do not consistently meet state water quality standards in various respects and that the most serious deficiency is low dissolved oxygen concentrations. The data show a general downstream trend of increasing specific conductance with seasonal fluctuations due to dilution during the summer rainfall season. Conductivity increases are generally attributable to inputs of mineralized ground water, some of which occurs from irrigation wells. The specific conductance levels in the upper St. Johns regularly exceed the Class I standard of 500 micromhos per centimeter. Although Respondent has over 170 artesian wells under state permits, the wells are only used when irrigation water is necessary and are capped and controlled by valves at other times. Although specific conductance has been shown to increase beyond state standards in "Respondent's canals, primarily during the dry winter season, it is basically a ground water problem and is not considered by Petitioner and other state monitoring authorities to constitute a serious situation. Chloride levels generally increase in the area of Respondent's exterior canals during the summer, but they are almost always below the Class I water quality standard of

   250 mgs per liter. Phosphorus concentrations increase somewhat as the river passes the confluence with the North Mormon Outside Canal, but the average total phosphorus concentration in the canal is essentially the same as that in the river upstream of the canal confluence. As to nitrogen concentrations, the data show that there is no pattern of increased concentrations arising from Respondent's canal discharges. Turbidity has not been shown to be a problem since Respondent discontinued pumping during dragline operations. BOD values have not been shown to be sufficiently high as to constitute a water quality problem. (Testimony of Cox, Shannon, Hulbert, Auth, Petitioner's Exhibits 8, 9, 11, 16, 18, 19, 24, 26, 27-29)

   
   

7. It is generally agreed by water quality experts that low dissolved oxygen levels are natural to the upper St. Johns River, particularly during periods of high rainfall during the summer and fall. Agricultural activities in the St. Johns River basin contribute to oxygen depletion by the nutrient load that is pumped into the receiving waters after having remained in interior canals for varied periods of time during the dry season. Highly mineralized artesian well water which has migrated to canals, collected plant debris, fertilizer, and cattle waste all serve to depress oxygen values when discharged into the river system. Aquatic plants, such as hyacinths, tend to proliferate in stagnant canals during the dry season and are released into the river during pumping operations. They accumulate in the river lakes where spraying operations by the St. Johns River Water Management District cause decomposition of the plant material which also serves to reduce the oxygen supply. This, in turn, is detrimental to the fish habitat and has caused fish kills in extreme situations. Studies have shown that the population of fish in the river has decreased over the years due to the degradation of water quality and limited access to spawning and grazing areas. Less dissolved oxygen affects the food

   supply and growth of fish. However, Respondent's interior canals have been a plentiful source of fish over the years. Another cause of reduced oxygen levels in the upper St. Johns River is the natural loading of nutrients from accumulated detritus from adjacent marshes and wetlands. In particular, the trees and plant life in the area from Lake Washington to south of Lake Winder consist of a swamp forest which produces a larger amount of detrital material than grass marshlands.

   
   

8. During the wet season of June through October, average dissolved oxygen levels in the upper St. Johns River range from 2.0 to 4.0 mgs per liter and can, at times, fall as low as 0.0. However, samples from lake areas in the upper St. Johns show average levels ranging from 4.9 mg/1 to 7.9. Although water samples showing dissolved oxygen values of zero were measured in Bulldozer Canal in 1978, a sample from the river upstream of the canal showed the same value. In January 1979, six locations were sampled along Bulldozer Canal and in Respondent's canals located behind the dike. No pumps were operating and the data did not indicate any appreciable water quality problem. Samplings in the North Mormon Outsider Canal consistently show dissolved oxygen concentrations of less than 2.0 mg/1. In most cases, the dissolved oxygen concentration in the canal was less than in the river upstream, and in some cases a drop in dissolved oxygen concentration in the river occurred as it passed the canal.

   
   

9. Respondent's pumps normally operate during the rainy season after a two to four inch rainfall. There are some twenty-three potential periods for Pumping during the months July to October, but normally the pumps are operated for only about fourteen days a year. It is estimated that the pumps contribute less than one percent of the river content during such periods. Water samples taken from Respondent's exterior canals in October 1978, both before and after pumping, failed to reveal any significant change in dissolved oxygen levels. Insufficient data exists to show the effect of pumping on dissolved oxygen levels at the present time. The organic material discharged by pumping operations undoubtedly depresses oxygen values to some unknown extent, but seasonal monitoring is necessary to ascertain precise data in this regard. The Florida Game and Fresh Water Fish Commission studies showed that only at one time was there found to be a low dissolved oxygen level when the pumps were operating. Initially, at least, pumping serves to aerate the water to some degree with consequent increase in dissolved oxygen. Other ranching and agricultural operations along the upper St. Johns River, together with organic material flushed from adjacent lands, provide an unknown contribution to the depressed oxygen values of the upper St. Johns River. Temporary operating permits have been issued to a number of ranches and farms adjacent to the river which call for monitoring of water quality from structures and pump discharge for evaluation of the effects of the discharge upon the receiving waters. Respondent is one of several such sources in the upper St. Johns River who has declined to submit an application. Although the term "stormwater discharge" is not defined in Chapter 403 or DER rules, pumped discharges of water that has been dormant for a considerable period of time with accumulated plant debris, nutrients, and other wastes are not considered by DER, as a matter of policy, to be "stormwater discharge" within the meaning of Rule 17-4.248, F.A.C.

   (Testimony of Parks, Sullivan, Hulbert, Justesen, Cornwell, Shannon, Dahl, Mapes, Pate, Ross, Petitioner's Exhibits 6-7, 10-10A, 12-15, 20-24, 26,

   Respondent's Exhibit 2)

   
   

10. The Deseret Ranch contains pine flatwoods, and numerous cypress domes, strands, and marshes. Approximately 50 percent of the ranch area has been left in a natural system and therefore is one of the most productive areas in Florida for the propagation of wildlife. The ranch creates an excellent environment for

    such productivity by a mixing of natural and developed environment. A wide variety of animal, bird, aquatic and plant life are found throughout the ranch property. Approximately 30,000 deer are estimated to inhabit the ranch area. (Testimony of Cornwell, Dahl, Sullivan, Mapes, Pate, Justesen, Shannon, Respondent's Exhibits 7-10, Petitioner's Exhibit 26)

    
    

11. Three public witnesses testified at the hearing. One witness who operates Camp Holly, a fish camp on the St. Johns River, attested to the importance of the river system for recreational and fishing purposes, and expressed concern as to fish kills and the adverse effects on fishing from recent high water. Another witness who is a professional fisherman expressed similar concerns about recent flooding and consequent detrimental effects on fishing. The third witness testified as to his opinion that Petitioner is a responsible agency that is cautious in development and analysis of data in carrying out its statutory responsibilities. (Testimony of Cataldo, Hunter, Nicolay, Hearing Officer Exhibit 1)

    
    

12. At the hearing, Petitioner submitted in evidence a summary of its costs of investigating the activities of Deseret in preparation for this administrative proceeding in the amount of $632.94. However, agency records supporting the expenditures were net made available to Respondent and, consequently, Respondent had no opportunity to determine the accuracy of such costs. It is therefore found that Petitioner's costs are not supported by competent evidence. (Testimony of Kozlev, Petitioner's Exhibit 30)

    
    

    CONCLUSIONS OF LAW

    
    

13. Petitioner seeks to take administrative enforcement action against Respondent pursuant to Section 403.121, Florida Statutes, based upon alleged violation of Chapter 403 and Chapter 17-3, Florida Administrative Code. Specifically, Petitioner alleges that Respondent's Dumping operations result in the discharge of agricultural waste water into waters of the state and reasonably can be expected to be a source of pollution. It is alleged that such operations have discharged contaminated waters in violation of state water quality standards with respect to deleterious and toxic substances, chlorides, turbidity, dissolved oxygen, biochemical oxygen demand, and specific conductance. Further, Petitioner asserts that Respondent does not possess a permit for the operation of the Pumping stations as required by Section 403.087 (1), F.S., and Rule 17-4.03, F.A.C., which therefore constitutes a violation of Section 403.161(1)(b) , F.S. Based on the alleged violation, Petitioner proposes to issue a final order requiring Respondent to apply for an operation permit for its pumping stations and to make payment for expenses of the state in tracing, controlling, and abating the purported sources of pollution.

    
    

14. Respondent has attacked the validity of Section 403.087 on constitutional grounds. Such an attack, of course, is beyond the jurisdiction of a Hearing Officer. Respondent also asserts that water testing of its discharges and the infrequency of its pumping operations show that the pumps in question cannot be considered a significant source of pollution and that the discharged water contains little or no man-made or man-induced alterations of the integrity of the water within the meaning of pollution as defined in Section 403.031, F.S.

    
    

15. Section 403.087(1) provides that no stationary installation which will reasonably be expected to be a source of water pollution shall be operated without an appropriate and valid permit issued by Petitioner. Section 403.088(1) prohibits any person from discharging waste into the waters of the

    state which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them. Subsection 403.088(3)(a) provides that:

    
    

    Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit.

    
    

    Subsection 403.088(4)(a) provides that a person who does not qualify for an operation permit or who has been denied one may apply to the department for a temporary operation permit which shall be issued by the department on various specified grounds. Any such permit must specify the manner, nature, volume, and frequency of the permitted discharge, required water monitoring and the rendering of reports thereon to evaluate the effect of the discharge on receiving waters, and any other requirements or restrictions deemed necessary to protect the quality of the receiving waters.

    
    

16. Section 403.161(1)(b) provides that failure to obtain any permit required by Chapter 403 is a violation of such chapter. Section 403.121 provides pertinently:

    
    

    403.121 Enforcement; procedure; remedies.-- The department shall have the following . . . administrative remedies available to it for violations of this chapter, as specified in Section 403.161(1).

    * * *

    (2) Administrative remedies:

    * * *

    (b) If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action.

    
    

    Rule 17-1.58(2) provides that Petitioner's orders for corrective action issued pursuant to administrative enforcement actions shall include "a description of remedial action, with implementing time-table, which is required, and set forth any damages, costs of investigation, or other demands the Department is authorized by law to recover."

    
    

17. Based upon the foregoing statutory provisions, it is clear that if Respondent is required by Chapter 403 to obtain a permit to operate its pumps, Petitioner has authority under Section 403.121(2)(b) to order the "control of the conditions creating the violation or other appropriate corrective action" by requiring Respondent to make application for a appropriate permit. Although Sections 403.087(1) and 403.088(1) prohibit certain discharges into the waters of the state without an appropriate permit, they do not require that such a permit must necessarily be obtained unless stationary installations are operated or certain wastes are actually discharged in the waters of the state. Conceivably, Respondent could decide to stop operating its pumps and discharging any waste henceforth. However, Section 403.088(3)(a) requires any person intending to discharge wastes to make application for an operation permit. Accordingly, unless Respondent elects to shut down its operation, an eventuality which has not been suggested by Respondent, continued operation requires that an

    application be made to Petitioner, if required by law. To determine this question, it must be found that Respondent operates "stationary installations" which will reasonably be expected to be a source of "water pollution" or that Respondent intends to discharge "wastes" into waters of the state. Section 403.031(2) defines "pollution" as the presence in the waters of the state of any substances or contaminants or man-made or man-induced alteration of the chemical, physical, or biological integrity of water in quantities or levels that are or may be potentially harmful or injurious to human health or welfare or animal or plant life. "Wastes" include substances which may pollute or tend to pollute the waters of the state. "Installation" is any structure, equipment, or facility which may emit water contaminants in quantities prohibited by rules of the department and "effluent limitations" means restrictions established by the department on quantities or concentrations of chemical and other constituents which are discharged into waters of the state. Respondent's pumping stations certainly are stationary installations which are capable of emitting water contaminants in prohibited quantities. The purpose of this proceeding is not to determine whether Respondent's discharged water contained contaminants in such quantities that would justify the issuance or denial of an operation permit. This determination must be made upon the submission of a permit application. The sole question is whether Respondent's pumps discharge water containing substances which may pollute or tend to pollute the waters of the upper St. Johns River. If so, as heretofore stated, Petitioner may order Respondent to amply for an operation permit. The evidence presented at the hearing shows that on several occasions water samples taken from representative sites in Respondent's outside canals when pumps were in operation did not meet state standards as to dissolved oxygen and specific conductance. Additionally, other samples taken undersimilar conditions showed excessive quantities of phosphorus. The totality of the evidence as to Respondent's agricultural and ranching operation leads to the inescapable conclusion that pumped discharges reasonably may be expected to be a source of water pollution. The infrequency of Respondent's utilization of its pumps to discharge water does not ameliorate, but indeed can exacerbate the problem by reason of the fact that detrital and other polluting substances which have accumulated in the interior canals during the dry season are flushed out in greater quantities when the pumps are placed into operation during periods of seasonal rainfall. It is also immaterial for the purposes of this proceeding to compare water samples from in and around Respondent's pumps with that found in the St. Johns River upstream and downstream of such installations. It is conceded by both parties that the waters of the St. Johns River do not meet state standards for Class I classification in several respects, but the extent to which Respondent's discharges may or may not contribute to the quality of the river content is a matter to be determined during agency processing of an operating permit application. It then could well be determined that Respondent does not qualify for such a permit, or that a temporary operating permit should be issued with attached appropriate conditions.

    
    

18. It is therefore concluded that Petitioner is authorized under applicable law to require Respondent to make application for an operation permit for its pump installations. It is, however, also concluded that Petitioner has failed to establish by sufficient evidence the basis for recovering its investigative costs in this matter, assuming arguendo its entitlement to same in an administrative proceeding.

    
    

19. Respondent contends that its pumped discharges constitute only stormwater which under DER Rule 17-4.248, F.A.C., effective January 1, 1979, requires permitting only if such discharges have or probably will have a "significant impact" on the water quality of receiving waters of the state, and

    which provides for exemption of permitting requirements for existing such discharges until June 1, 1979 in certain areas and under certain conditions. However, the evidence establishes that the water discharged from the pumps undoubtedly contains waste substances which have accumulated over a period of time in the interior canals, and thus cannot be deemed to constitute solely "stormwater discharge." In the absence of a statutory or regulatory definition of "stormwater discharge," DER's interpretation of the term in the foregoing manner is considered a reasonable and rational agency policy which was not successfully challenged by Respondent. Consequently, Rule 17-4.248 is deemed inapplicable.

    
    

20. Proposed Recommended Orders and accompanying briefs filed by the parties have been fully considered, and those matters therein not embodied or discussed in this Recommended Order are considered to be either inapplicable or unsupported in law or fact.

RECOMMENDATION

That Petitioner issue a final order for corrective action requiring Respondent to submit an application for an operation permit covering its Pumping stations within sixty (60) days from the date of such final order, under the authority of Section 403.121(2)(b), Florida Statutes.

DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Segundo Fernandez, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Philip N. Watson, Esquire 17th Floor CNA Building Post Office Box 231 Orlando, Florida 32802

Docket for Case No: 78-002040

Orders for Case No: 78-002040