vs. ) CASE NO. 80-810
GUNARD C. BRAUTCHECK, SR. )
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, in the New Courthouse, 315 West Main Street, Tavares, Florida. This hearing was conducted on August 19, 1980.
For Petitioner: Charles G. Stephens, Esquire
For Respondent: Gunard C. Brautcheck, Sr.
The issue presented here concern a the Notice of Violation and Orders for Corrective action filed by the Petitioner against the Respondent for alleged violations of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, related to the purported operation by the Respondent of a water pumping system without the benefit and authority of a permit issued by the Petitioner.
This case is presented for consideration based upon the Respondent, Gunard C. Brautcheck, Sr.'s request for hearing pursuant to Subsection 120.57(1), Florida Statutes, on the relief sought by the Petitioner, State of Florida, Department of Environmental Regulation, in which the Petitioner has filed a Notice of Violation and Orders for Corrective Action on March 2, 1980. See DER File No. IW-16-80.
The Petitioner is an administrative agency in the State of Florida which has the responsibility to protect Florida's air and water resources and to administer and enforce Florida Air and Water Pollution Act, Chapter 403, Florida
Statutes, and the rules promulgated thereunder; namely, Chapter 17, Florida Administrative Code.
The Respondent, Gunard C. Brautcheck, Sr., is the owner of a tract of agricultural land located in Lake County, Florida, in Sections 29 and 32, Township 18 South, Range 27 East. This tract of land is known as the Springhill Farm and is located in an area referred to as Eustis Meadows, a wetlands area which is contiguous to several lakes. One of those lakes is Lake Serpentine, which covers an area of twenty-two (22) acres.
The Brautcheck wetlands are drained for the purpose of the cultivation of grasses, hay and sorghum to be used for dairy feed. The Respondent achieves drainage relief by the utilization of a series of interior ditches and this area which has been drained and protected from external overflow at the southern perimeter of the Respondent's property through the utilization of an earthen berm or dyke separating that water source and the property which has been drained. In particular, this berm or dyke serves to repel the water flow from Lake Serpentine in the times of extreme high incidents of rainfall. On those occasions, there is a water connection from Lake Serpentine through the marshlands north of that lake and up to the point of the berm which is at the southern perimeter of the Brautcheck property.
Although the Respondent has taken action to protect against the overflow from Lake Serpentine area and has utilized a series of ditches to protect against the internal inundation of his property, there are times when the interior ditches are inadequate to handle the volume of water without backflow onto the property. To contend with this eventuality, the Respondent has employed a pump which is used to evacuate the water from the interior ditches on his property with the pumping points being the southernmost interior ditch adjacent to the berm. The water that is pumped flows through the hero by way of drainage pipes with the water entering the marshlands through that water route and eventually into Lake Serpentine.
The water that is pumped out of the ditches on the Brautcheck property also will eventually enter another lake to the west of his property known as Trout Lake. This connection is made through the marshlands into a culvert system which has a flapper valve, with the culvert having an outfall into the waterway known as "Hick's Ditch" and from that waterway directly into Trout Lake. (Petitioner's Composite Exhibits 1 and 5 admitted into evidence contain map grids which show the proximity of the Brautcheck pump site to Lake Serpentine and the attendant marshlands known as Eustis Meadows and Trout Lake.
Lake Serpentine and Trout Lake are lakes over which the Petitioner has jurisdiction and regulatory authority and the marshlands between the southern berm referred to herein and Lake Serpentine are also with the agency's jurisdiction and authority.
Petitioner's Composite Exhibits 3 and 6 are photographs depicting the pump; the interior drainage ditch; and the berm in that area of marshlands adjacent to the property. The marshlands as depicted in the photographs were inundated by water at the time the Photographs were made. Photographs found in Exhibit 6 show the pump in operation.
The waters of the interior ditch which are being directly pumped through this system and into the receiving waters have high biochemical oxygen demand; high nutrient value, in particular nitrogen and phosphorus; depressed levels of dissolved oxygen and high ammonia content. This is borne out by the
water quality tests which were made on August 29, 1979, and again on September 25, 1979, as depicted in the Petitioner's Composite Exhibits 1 and 5, respectively. The values attributed to the water samples taken in the interior ditch as contrasted with samples taken in the marsh area immediately adjacent to the south of the ditch and in Lake Serpentine proper, show that a degradation of water quality is occurring with the introduction of the water from the interior ditches into the receiving waters in the marsh area. This degradation is occurring in the marsh area and in Lake Serpentine. In addition, algae bloom occurs in the interior ditch which can be transmitted by pumping water containing these blooms into the receiving waters and this type of bloom when it dies, has a very detrimental affect on dissolved oxygen levels. This type of algae bloom is not found in Lake Serpentine in it natural state.
The effect of pumping the water of the interior ditch on the Brautcheck property into the wetlands and eventually into Lake Serpentine could result in fish kills and be harmful to other aquatic life, to include plants and animals.
The Respondent was first made aware of the problem of the discharge through his pumping system into waters which are regulated by the State in a letter from the Lake County Pollution Control Board dated March 27, 1979, which advised him of the necessity to obtain a permit. This letter may be found in Petitioner's Composite Exhibit 1.
On June 27, 1979, the Petitioner notified the Respondent of the necessity to comply with the Provisions related to permits as found in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. A copy of this letter of notice by certified mail may be found in Petitioner's Composite Exhibit 2 admitted into evidence. The Respondent having failed to reply to that letter, an additional letter was forwarded on August 22, 1979, from the Petitioner to the Respondent stating the necessity for permit and indicating the possible consequence of this noncompliance, and a copy of this correspondence may be found in the Petitioner's Composite Exhibit 2.
Subsequent to this time, the pump was seen to be operating and discharging water into the receiving waters of the State as recently as October 9, 1979.
The Respondent having failed to reply to the August 22, 1979, letter of warning, there ensued the current March 2, 1980, Notice of Violation and Orders for Corrective Action as forwarded by the Department, and in the course of investigating this case, the Department has incurred expenses in the amount of five bonded fifteen dollars and seventy-two cents ($515.72).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Sections 120.57 and 120.60, Florida Statutes.
At the hearing the Respondent offered Exhibits 6 and 7 which were objected to on the basis of their relevancy and on the basis of the lack of authenticity. The Respondent was given the opportunity to present authenticated copies of his Exhibits 6 and 7 within ten (10) days of the date of the hearing. The Respondent has presented copies from the Board of County Commissioners, Lake County, Florida, which are the same as Respondent's Exhibits 6 and 7. These copies as obtained serve to authenticate Respondent's Exhibits 6 and 7. The
Petitioner's continued objection as to relevancy is denied and the Respondent's Exhibits 6 and 7 offered in the course of the hearing together with the authenticating documents are hereby admitted and made a part of the record.
In addition to transmitting copies which serve to authenticate the Respondent's Exhibits 6 and 7, the Respondent in his transmittal included a number of items which were outside the Hearing Officer's authority for posthearing exhibits. These matters may be found as part of the documents in authentication for Respondent's Exhibits 6 and 7. There are also other unrelated items. The items which are not in keeping with the authority afforded by the Hearing Officer for posthearing exhibits are rejected and have not been utilized in the course of consideration of this case; nonetheless, they are being included with the other exhibits of record to allow the agency head to understand the nature of this presentation.
Section 403.061, Florida Statutes, grants the Petitioner the power and the responsibility to control and prohibit the pollution of water, to include the authority to require permits for sources of water pollution. Section
403.087 further states that stationary installations which will reasonably be expected to be a source of water pollution require a permit. The water pollution spoken of is as defined in Subsection 403.031(2), Florida Statutes.
The waters spoken of over which permit authority exists are those waters as defined in Subsection 403.031(3), Florida Statutes, and the installation referred to over which the Petitioner has authority is as defined in Subsection 403.031(8), Florida Statutes.
In addition, there are substantive rules dealing with potential sources of water pollution which may be found in Chapter 17-3, Florida Administrative Code, to include: Rule 17-3.051, Florida Administrative Code, dealing with "minimum criteria for all waters at all times and all places"; Rule 17-3.061, Florida Administrative Code, dealing with "surface waters, general criteria" and Rule 17-3.121, Florida Administrative Code, dealing with "criteria: class III waters-recreation-propagation and management of fish and wildlife-surface waters."
The pumping system located on the Brautcheck property is the type installation contemplated by Subsections 403.031(8) and 403.087(1), Florida Statutes, in that it is a stationary installation which may reasonably be expected to be a source of water pollution. Consequently, it is an activity by its construction, maintenance and operation that must have a permit, otherwise the Respondent has violated Chapter 403, Florida Statutes
The facts reveal that the Respondent has operated this installation without the benefit of appropriate and currently valid permit and that the Respondent in operating the pumping system caused pollution which is harmful or injurious to human health or welfare, animal, plant or aquatic life by degrading the water quality at the receiving waters over which the Petitioner has jurisdiction, all in violation of Subsections 403.087(1) and 403.161(1)(a) and (b), Florida Statutes.
The Petitioner is entitled to the proven reasonable costs and expenses incurred in identifying the source of the discharge and the nature of the discharge from the Respondent's property into the receiving waters of the State in the Petitioner's efforts to control and abate this source of pollution. The authority for this award is as found in Subsection 403.141(1), Florida Statutes.
Based upon the Findings of Fact made herein and the Conclusions of Law reached, the following disposition is recommended:
DONE AND ENTERED this 18th day of September, 1980, in Tallahassee, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
1/ The Petitioner has submitted Proposed Findings of Fact to the Hearing Officer and these proposals have been reviewed prior to the entry of this Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that those Proposed Findings of Fact are inconsistent with this Recommended Order, they are hereby rejected.
Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Gunard C. Brautcheck, Sr. Star Route 1, Box 308
