STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA WILDLIFE FEDERATION, ) NATIONAL WILDLIFE FEDERATION, ) FRIENDS OF THE EVERGLADES, and ) THE CONSERVATION DEPARTMENT OF ) THE CORAL GABLES WOMEN'S CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 79-256

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and the ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Respondent, )

) THE FLORIDA SUGAR CANE LEAGUE, ) INC., and DAIRY FARMERS, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at South Florida Water Management District Auditorium, 3301 Gun Club Road, West Palm Beach, Florida, at 10:00 a.m., on June 4, 5 and 15, 1979.

APPEARANCES

For Petitioners: Scott D. Sheftall, Esquire and

Marvin Chavis, Esquire Frates, Floyd, Pearson,

Stewart, Richman, & Greer One Biscayne Tower

Twenty-fifth Floor Miami, Florida 33131

For Respondent: Randall E. Denker, Esquire

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

For Respondent: John Wheeler, Esquire (South Florida 3301 Gun Club Road

Water Management West Palm Beach, Florida 33402 District)

For Intervenor: Philip S. Parson, Esquire, (Florida Sugar Post Office Box 1549

Cane League) Tallahassee, Florida 32302

For Intervenor: William D. Moore, Esquire, (Dairy Farmers) 700 Barnett Bank Building

Tallahassee, Florida 32301

On November 22, 1978, the Department of Environmental Regulation (hereafter DER), issued to the South Florida Water Management District (hereafter SFWMD) its notice of intent to grant a temporary operating permit (hereafter TOP), for the discharge of waters into Lake Okeechobee through certain structures controlled by SFWMD. On January 19, 1979, DER received a Petition for Public Hearing from Petitioners, Florida Wildlife Federation, National Wildlife Federation, Friends of the Everglades, and the Conservation Department of the Coral Gables Women's Club (hereafter collectively Petitioners), for public hearing pursuant to Chapter 120, Florida Statutes. One of the conditions of the proposed TOP is that the permit will be effective for thirty (30) months.

Petitioners bring this administrative action seeking to reduce the duration of the TOP from thirty (30) months to twelve (12) months alleging that the durational provision is unreasonable and arbitrary.

Petitions for intervention were granted as to the Florida Sugar Cane League, Inc., and Dairy Farmers, Inc.

FINDINGS OF FACT

1. SFWMD is a public corporation and local sponsor for the federally authorized Central and Southern Florida Flood Control Project. As part of its duties as local sponsor, SFWMD operates eight pumping stations and six other structures all of which discharge into Lake Okeechobee. On August 26, 1977, SFWMD filed an application with DER for an operating permit for its inflow points into Lake Okeechobee. By mutual agreement, SFWMD and DER determined that there was insufficient data available to determine whether SFWMD qualified for an operating permit, therefore, DER proposed issuing a TOP. On November 22, 1978, DER issued its notice of intent to issue a TOP to SFWMD for its inflow points into Lake Okeechobee. Among the conditions contained in the TOP is that the permit will be effective for thirty (30) months.

   
   

2. Petitioners complain that Lake Okeechobee is being environmentally damaged by the drainage into Lake Okeechobee of waters from surrounding agriculture and dairy farming areas. This, say the Petitioners, is causing the eutrophication or damaging enrichment of the Lake by the addition of chemical elements above their natural levels in that environment. DER and SFWMD contend that at least thirty (30) months is required to complete the testing and observation of the Lake and to make long-range plans for reduction of drainage into Lake Okeechobee and to develop necessary management alternatives to accomplish that goal.

   
   

3. The proposed TOP provides a temporal framework. Within thirty (30) days of the issuance of the permit, SFWMD is required to present to DER a program for interim actions which will reduce nutrient loading during the time of the permit.

   
   

4. Within 120 days of the issuance of the permit, SFWMD is required to submit for approval by DER a plan of study for determining the probable impacts

   of management alternatives for reducing the nutrient loading into Lake Okeechobee.

   
   

5. Within twenty-four (24) months of the issuance of the permit, SFWMD is required to submit to DER an analysis of the impacts of each reasonable management alternative which will reduce the nutrient loading into Lake Okeechobee. During two successive rainy seasons SFWMD is required to do extensive chemical testing on site.

   
   

6. After SFWMD submits its analysis of the impacts of management alternatives, DER has six months to review the data submitted and approve a schedule for implementing a plan to reduce nutrient loadings into Lake Okeechobee.

   
   

7. Petitioners have submitted seven (7) Proposed Findings of Fact, five

1. of which are hereby adopted in this Recommended Order:

   
   

   1. Lake Okeechobee is in a eutrophic state and getting worse as a result of man's activities.

   2. Both state agencies charged with respon- sibility for protecting Lake Okeechobee have long recognized that the Lake is in

      a eutrophic state and is in need of relief.

   3. Both the DER and the SFWMD have recognized that backpumping contributes significantly to eutrophication.

   4. Since 1975, DER and SFWMD have known that backpumping is one cultural activity that should be and could be stopped or substan- tially reduced.

   5. (This proposed Finding of Fact was numbered

6 in Petitioners' pleading.) The durational provision of the TOP is linked to the addi- tional time the DER and SFWMD claim it will take to study ways to stop backpumping.

1. Petitioners' Proposed Findings of Fact numbers 5 and 7 are hereby rejected for the following reasons. First Petitioners request a finding that "the state agencies have done nothing to reduce the amount of bad water backpumped into Lake Okeechobee." In fact DER and SFWMD have proposed the TOP with its temporal frame work and requirements of interim actions for reduction of backpumping.

   
   

2. Petitioners also propose as a finding of fact that "the TOP's durational provision as drafted is unreasonable and arbitrary in not assuring immediate reductions in backpumping and therefore, should be redrafted to require such action." Petitioners have not supported this contention with substantial, competent evidence. In fact, the TOP provides that a plan for the reduction of nutrient loading be presented within thirty (30) days of the issuance of the TOP. Furthermore, the proposed finding of fact is outside the scope of the issues framed by the pleadings. The issue is whether the thirty

   (30) month durational provision of the TOP should be reduced to twelve (12) months and not whether the TOP provides for immediate reductions in backpumping.

   
   

3. The reason for the issuance of the TOP in lieu of an operating permit is to allow SFWMD time to gather data, to assess impacts and to develop

   management alternatives for the control of nutrient and pollutant loadings. Although some biological and chemical data already exist, much of the information requested of SFWMD under the TOP is currently unavailable.

   Specifically, the TOP requires that numerical nutrient limits be established for each discharge point and that specific management alternatives be developed.

   Currently available data on backpumping reduction does not specifically detail how much reduction is feasible nor what alternatives are soundest environmentally. Existing reports dealing with backpumping into Lake Okeechobee are not specific enough to support presently implementable management alternatives.

   
   

4. Petitioners introduced no evidence to establish that the budgetary or manpower constraints with which SFWMD must deal would allow a reduction of the durational provision of the TOP from thirty (30) months to twelve (12) months. SFWMD's witnesses, however, established that if SFWMD were required to complete the study within one year, it would be economically impossible unless money and personnel earmarked for other important projects were tapped. Not only would the instant studies suffer a decline in quality but other equally pressing environmental studies would be jeopardized.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioners' pleadings took the position that all necessary studies prerequisite to implementation of a comprehensive management plan for Lake Okeechobee should be completed in 12 rather than 24 months as provided in the TOP. Petitioners' pleadings did not raise the issue of whether immediate steps beyond those called for in the TOP should have been included in the TOP. It is significant to note that no amendments to the Petition for Public Hearing were offered by Petitioners to expand the issued frame therein.

   
   

6. The evidence as a whole establishes that DER has not abused its discretion in establishing a 30 month durational provision in the TOP. Such provision accommodates the manpower and budgetary constraints upon SFWMD so as to mitigate against a reduction in the effectiveness of other programs currently being conducted by SFWMD and most importantly, insures that adequate management alternatives can be developed so that the waters that are currently being backpumped into Lake Okeechobee are not diverted in such a way as to reek environmental damage upon another state locale. Petitioners have failed to establish with competent substantial evidence that the 30 month provision could he reduced to 12 months. It is, therefore,

RECOMMENDED that the TOP issue as drafted.

DONE and ENTERED this 8th day of November, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Scott D. Sheftall, Esquire Marvin Chavis, Esquire

One Biscayne Tower Twenty-fifth Floor Miami, Florida 33131

Randall E. Denker, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

John H. Wheeler, Esquire 3301 Gun Club Road

West Palm Beach, Florida 33402

Philip S. Parson, Esquire Post Office Box 1548 Tallahassee, Florida 32302

William D. Moore, Esquire 700 Barnett Bank Building Tallahassee, Florida 32301

Robert Grafton, Esquire Post Office Box V

West Palm Beach, Florida 33402

Docket for Case No: 79-000256

Orders for Case No: 79-000256