STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY B. POWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0368

)

U.S. NAVY and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 11 and 12, 1993, in Key West, Florida.

APPEARANCES

For Petitioner: Herbert Walker, Esquire

Qualified Representative 1207 Florida Street

Key West, Florida 33040

For Respondent, Stephen A. Beverly, Esquire

U.S. Navy: Office of Counsel Department of the Navy

Naval Facilities Engineering Command 2155 Eagle Drive

Charleston, South Carolina 29411

For Respondent, Francine M. Ffolkes, Esquire Florida Department Claire E. Lardner, Esquire

of Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether the United States Navy is entitled to permits for the construction of not more than seven Class V storm water injection wells from the Florida Department of Environmental Regulation.

PRELIMINARY STATEMENT

The United States Navy (Navy) proposes to construct at Key West, Florida, a housing project for junior officers and their families referred to as the Peary Court project. The Navy applied to the South Florida Water Management District

(SFWMD) 1/ for a surface water management permit for the Peary Court project. As part of the surface water management permit, the Navy applied to the Florida Department of Environmental Regulation (Department) for permits to construct and to manage injection wells to discharge storm water from the surface water management system. The application is for not more than seven injection wells. If the injection wells are to be permitted, the number of wells will not be known until after tests can be performed on the first well to be constructed.

At the formal hearing the Navy presented the testimony of three witnesses, Rice Creekmore, Albert Muniz and John Miller and offered seven exhibits, each of which was accepted into evidence. Mr. Creekmore is a professional engineer and was accepted as an expert witness in the field of the design of surface water management systems and the utilization of injection wells. Mr. Muniz is also a professional engineer and was accepted as an expert witness in the fields of injection well design and construction, aquifer storage and recovery, well contamination assessment and remediation, hydrology and the interaction of fresh and salt water. Mr. Miller is a professional geologist and was accepted as an expert witness in hydrogeology with expertise in ground water monitoring and impact assessment including contaminant transport assessment and geochemistry.

The Department presented the testimony of two witnesses, John Myers and Harley Young, and offered five exhibits, each of which was accepted into evidence. Mr. Myers is a professional geologist who was accepted as an expert witness in the field of geology. Dr. Young is a supervising permitting official with the Department and was accepted as an expert witness in the fields of civil engineering and in the application of the Department's permitting standards to the permitting of underground injection control systems.

The Petitioner testified on his own behalf, presented the additional testimony of Lawrence Bauerle, Phillip Childs, Ronald Jones, Donald McKenzie, and Michael Merritt, and offered eight exhibits, seven of which were accepted into evidence. Mr. Bauerle is a resident of Key West who draws drinking water from a well. Mr. Childs is a civil engineer and was accepted as an expert in the fields of surface water management systems and shallow injection wells. Dr. Jones is a microbiologist who was accepted as an expert in the field of water quality. Mr. McKenzie and Mr. Merritt are hydrogeologists employed by the United States Geological Survey. Among the exhibits accepted on behalf of Petitioner was the deposition of Dr. John Genereux, who was accepted as an expert in the field of hydrology.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Navy intends to construct a 160 unit residential housing project at Key West, Florida. This project will be built on a 25.89 acre site that is bordered on the north by Eaton Street and Palm Avenue, on the east by Eisenhower Drive, on the south by Angela Street, and on the west by White Street. As designed, the completed site will have approximately 58 percent pervious area and 42 percent impervious area.

   
   

2. In its undeveloped state, storm water runoff for the Peary Court site sheetflows to the north where a concrete containment wall directs the runoff to an existing inlet and storm drain. This existing inlet and drain connects to the City of Key West's drainage system at the corner of Palm Avenue and

   Eisenhower Drive and eventually discharges into a nearby surface water body known as "Garrison Bight". Runoff capacity that cannot be managed by the City of Key West's drainage system collects and discharges onto Palm Avenue.

   
   

3. On September 21, 1992, the Navy submitted its initial permit application to the Department for the issuance of seven Class V storm water injection well permits. The seven injection wells are designed to function as part of a surface water management system. The storm water management system must be permitted by the South Florida Water Management District (SFWMD). The injection wells must be permitted by the Department.

   
   

4. The proposed surface water management system for Peary Court was designed to meet SFWMD permitting criteria and will utilize dry detention with filtration through grassy swales and grassy retention ponds for the pretreatment of the project's storm water runoff. The Navy applied to SFWMD for a permit for the proposed surface water management system. The SFWMD tentatively approved the application. Thereafter, a challenge was filed to the proposed agency action, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 92-6254. A Recommended Order was entered in DOAH Case NO. 92-6254 which recommended that the surface water management system be approved. A Final Order has been entered in DOAH Case 92-6254 by the SFWMD approving the Navy's surface water management system permit for Peary Court.

   The period for appeals of the Final Order has not expired as of the entry of this Recommended Order.

   
   

5. The Department gave notice on December 4, 1992, of its intent to issue the permits to the Navy for not more than seven injection wells to be operated as part of the Peary Court surface water management system. The permit the Department intends to issue contains 16 general conditions and 10 specific conditions. None of the conditions are being challenged by the Navy. Among the specific conditions are the following:

   
   

6. This permit is valid only for the specific process and operation indicated in the application. Any changes in these which may result in altered characteristics of the discharge are not permitted without the prior approval of the Department and modification of this permit.

7. The discharge authorized by this permit shall be consistent with the water quality standards set forth in Chapter 17-3, F.A.C. [S]hould conditions in the receiving body warrant, the Permittee may be required by the Department to upgrade, reduce or cease discharge of run-off approved by this permit, and adopt an alternative method of disposal within a reasonable time.

8. The permittee shall establish a periodic maintenance program that assures the integrity of the storm water drainage system to function as designed.

1. "Detention" as that term is used in the context of surface water management systems is the temporary detaining of water on a site prior to eventual offsite discharge. "Retention" is the permanent retaining of water on a site with no offsite discharge.

2. The proposed surface water management system will utilize grassy inlets and swales to direct runoff into four large grassy detention ponds as well as smaller pond areas prior to discharge from the surface water management system. Storm water that does not evaporate or percolate into the ground will be discharged through a v-notch weir discharge structure into Garrison Bight or to ground waters via the proposed injection wells. The detention ponds are connected with one another and act as one system so that the ponds fill and empty at the same rate. The surface water management system for Peary Court is designed so that there will be no offsite discharge during the first inch of a rainfall event. The on-site detention of the first inch of rainfall results in the removal of approximately 90 percent of all pollutants prior to discharge through what is referred to as "first flush".

   
   

3. With the exception of one cul-de-sac in the northeast corner of the project near the v-notch weir, all runoff draining into the proposed detention areas will flow through grassy swales and inlets. The proposed grassy inlets and swales will transport runoff to the grassy detention ponds at a rate of one quarter to one half inch per second and thus will provide adequate filtration for the storm water runoff before it gets to the detention pond. The storm water that comes from the cul-de-sac will include storm water from Palm Avenue, which is adjacent to the Peary Court site. This storm water will travel through at least 50 feet through pipe before entering the detention pond and will receive little filtration prior to entering the detention pond. The water from the cul-de-sac will receive some filtration in the detention pond.

   
   

4. The system is designed to detain the amount of storm water runoff which would be expected from a twenty-five year, three day storm event. Such a storm event in Key West would be expected to represent roughly a six to seven inch rainfall.

   
   

5. The proposed injection wells are Class V, Group 5 storm water drainage wells pursuant to Rule, 17-28.130(1)(e)5, Florida Administrative Code, and meet all pertinent construction standards.

   
   

6. The proposed injection wells will be located on the north side of Peary Court. The exact location and number of injection wells to be utilized will be determined by data received from conducting a well capacity test after the installation of the first injection well. The pre-development runoff from Peary Court was 55 cubic feet per second (cfs). Pursuant to SFWMD permitting criteria, the post-development discharge cannot exceed the pre-development discharge. The discharge capacity from the v-notch weir into Garrison Bight is

   11 cfs. Consequently, the maximum discharge from the injection wells will be 44 cfs.

   
   

7. The proposed location and number of wells are based on conservative estimates. No allowance is made in the surface water management system for naturally occurring evaporation or percolation.

   
   

8. Discharges down the proposed injection wells is not continuous and is only expected to occur during rare storm events.

   
   

9. The bottom of the detention ponds will be set at elevation 1.0 NGVD. The water inlets for the injection wells will be set at elevation 1.5 NGVD. Because the proposed water inlet for the v-notch weir discharge structure will be set at elevation 1 NGVD, offsite discharge to Garrison Bight will begin through the v-notch weir before any discharge through the injection wells.

   Discharge of storm water down the proposed injection wells will only occur when water levels in the ponds reach six inches (0.5 NGVD).

   
   

10. The proposed wells will be drilled to a depth of ninety feet with grouted steel casing extending down to a depth of sixty feet below land surface. The wells are to be grouted to ensure that there will be no vertical migration along the borehole.

    
    

11. Each injection well will have a concrete wellhead with a built in baffle to prevent floating debris, silt or sand from entering the well. The baffle will not prevent contaminants that are suspended in the storm water from being discharged through the injection well.

    
    

12. The Navy provided a bedrock assessment and groundwater quality profile by drilling two exploratory boreholes at Peary Court. The subsurface strata underlying Key West consists of distinct horizontal layers of Miami Oolite and Key Largo Limestone. Beneath Peary Court, Miami Oolite extends from ground surface down to between forty-seven and fifty feet below land surface. The Key Largo Limestone extends below the Miami Oolite formation.

    
    

13. Key Largo Limestone consists mainly of coral and limestone and is generally more porous and more permeable than Miami Oolite. Miami Oolite consists mainly of small sand like particles cemented together. Both formations can contain clays and lime or silicate muds. The Miami Oolite layer is not considered by the Department to be a "confining layer" as that term is used in the Department's rules determining the classification of wells because of its limited ability to retard the flow of fluids.

    
    

14. The injection zone for the proposed injection wells will be between 60 to 90 feet below land surface, which is in the Key Largo Limestone formation. Ground water in the injection zone contains 35,000 to 40,000 milligrams per liter (mg/l) of total dissolved solids (TDS). Ground water in the injection zone is classified under Department rules as G-III because it is ground water having more than 10,000 mg/l TDS.

    
    

15. A freshwater lens (the Key West lens) underlies a portion of Key West. The United States Geological Survey (USGS) documented the water quality and approximate size of the lens in 1990 by analyzing water samples taken from shallow monitoring wells. The results were compiled into what is referred to as the McKenzie Report. This thin layer of freshwater, varying in depths from two to ten feet, sits on top of a transition zone between the seawater and freshwater. This transition extends downward to approximately 40 feet below the surface of the land. The freshwater lens does not underlie Peary Court.

    
    

16. The Key West lens is classified under Department rules as G-II because it is ground water having less than 10,000 mg/l TDS. The McKenzie Report documents the size of the lens using chloride concentration contours, with 250 mg/l chloride at the center of the lens out to 5,000 mg/l at the edge of the lens. Chloride concentrations of 250 mg/l or less is the standard maximum chloride level for drinking water. The locations of the proposed injection wells are outside of the 5,000 mg/l chloride concentration contour. There is no potable water source in the immediate vicinity of the proposed wells.

    
    

17. The proposed injection wells will not be installed through G-II ground water (Key West lens), nor will it inject storm water into G-II ground water.

18. Movement of water in the injection zone will be governed by two forces, pressure gradients and buoyancy factors. The injected water is more buoyant than sea water because it is less dense. Consequently, there will be a tendency for the injected water to move upward. The injected water also moves outward along pressure gradients associated with the Key West lens. The Key West Lens is thicker in the center and thinner towards the sides. Because of this fact, it has varying pressure gradients which is greater toward the center and will cause the injected water to move away from the Key West Lens. It is an established geologic principle that subsurface sedimentary rock formations generally favor lateral movement of water over vertical movement. Because the Key Largo Limestone strata is more porous and more permeable than the Miami Oolite strata and because of the pressure gradients of the Key West Lens, the storm water injected through the injection wells will move laterally away from the Key West Lens and towards Florida Bay. Tidal action will contribute toward the movement of the injected storm water away from the Key West Lens. It is not expected that the injected storm water will reach the Key West lens. When the relative densities of the injected water and the ground water equalize, upward movement of the storm water will cease.

    
    

19. Subsurface tidal flows will have a washing machine effect on the discharging storm waters that will enhance the mixing and dispersion of the storm water. The mixing and dispersion of the storm water caused by subsurface tidal flows serve to reduce the buoyancy of the storm water, which retards its upward movement.

    
    

20. The Department has relied, in part, on the review by SFWMD of the surface water management system in reaching the conclusion that the storm water discharged through the wells will meet water quality criteria after having moved through the surface water management system. When the Navy first applied for the surface water management system permit, it was believed that Garrison Bight had been designated as an Outstanding Florida Water. Consequently, SFWMD required that the surface water management system be designed to meet discharge criteria applicable to Outstanding Florida Waters. Notwithstanding such design, it can still be expected that minute levels of various contaminants typically found in storm water, such as heavy metals and those contained in pesticides, petroleum products, and animal waste, will remain in the discharged storm water.

    
    

21. Saline ground waters contain microorganisms which live off trace amounts of organic material. Highly active zones of microorganisms, such as those found around injection wells, feed on and effectively break down organic compounds, including petroleum constituents, which may be discharged from injection wells.

    
    

22. Any heavy metals that may remain in the storm water when it is injected through the injection wells will likely be absorbed onto the minute clay particles present in the Key Largo Limestone and Miami Oolite. Other natural constituents found in ground water will precipitate phosphorus and will break down nitrates.

    
    

23. The Department's review of the Navy's application included an analysis of the proposed injection well design, the geologic, hydrogeologic, and water quality data and test reports provided in the permit application, and certain geologic literature, including the McKenzie report and other studies. Because of the known existence of the Key West lens, the Department required the Navy to submit more water quality and geologic data than would normally be submitted for a Class V injection well.

24. Rule 17-28.520, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The variety of Class V wells and their uses dictate a variety of construction designs consistent with those uses, and precludes specific construction standards for each type of Class V well outlined in this rule. However, a well must be designed and constructed for its intended use, in accordance with good engineering practices, and the design and construction must be approved by the Department.

       
       

25. Rule 17-28.530, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. All Class V wells shall be operated in such a manner that they do not present a hazard to an underground source of drinking water. ...

       
       

26. Rule 17-28.620, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. All owners of operators of Class V wells shall obtain a two-part Construction/Clearance permit ... The applicant shall submit to the Department at least the following information before receiving permission to construct:

       * * *

       1. Well location and depth, and casing diameter and depth for all water supply wells on the applicant's property, and well location for all water supply wells of public record within a 1000 foot radius of the proposed well;

       2. Description and use of proposed injection system, including type and construction of injection wells, physical and chemical

          analyses, estimated quantity, pertinent bacteriological analyses of injected fluid, and any proposed pretreatment;

       3. Proposed drilling and testing plan for any exploratory borehole or exploratory well proposed for the purpose of determining feasibility of Class V well injection at the site;

       4. If the flow of surface or other waters is directed by ditches or other artificial methods to the well, a delineation of the area drained by these features shall be provided.

27. Rule 17-28.610(2), Florida Administrative Code, prohibits the injection of contaminants into underground sources of drinking water where the contaminant may cause a violation of any primary drinking water regulations under Chapter 403, Florida Statutes, and Chapter 17-22, Florida Administrative Code, or where the contaminants may adversely affect the health of persons.

    
    

28. The Navy has provided reasonable assurances that the injected storm water will have no effect on G-II groundwater, that the injected storm water will have little or no effect on the water quality of G-III groundwater, and that the injected storm water will not result in a violation of the minimum criteria and standards for G-II and G-III groundwater. Further, the Navy has provide reasonable assurances that the proposed injection wells will not cause or contribute to any adverse effects on public health. These findings are based, in part, on the design of the surface water management system, on the different permeability of the geologic formations that underlie Key West, the biological and chemical factors in the saline environment into which the storm water will be injected, and on the pressure gradients and other dynamics of the Key West Lens. Although there was some disagreement among the various expert witnesses who testified in this proceeding, the most persuasive testimony establishes that the water discharged through the injection wells will not reach the Key West lens and that the water will likely have no detectable levels of contaminants if it ever reaches Florida Bay.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Florida Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

30. The Department has the responsibility and the authority to regulate underground injection systems under Chapters 373 and 403, Florida Statutes and the pertinent rules it has adopted.

    
    

31. An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

32. Only those applicable criteria and standards are to be considered when granting or denying permits. See, Taylor v. Cedar Key Water and Sewerage District, 590 So.2d 481 (Fla. 1st DCA 1991); and Council of the Lower Keys v. Charley Toppino & Sons, Inc. 429 So.2d 67 (Fla. 3rd DCA, 1983).

    
    

33. The Navy, as the applicant in this proceeding, has the burden of establishing its entitlement to the requested permit by a preponderance of the evidence. See, Florida Department of Transportation v. J.W.C., Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Rule 17-103.130, Florida Administrative Code.

    
    

34. Pursuant to Rule 17-28.130(1)(e)5., Florida Administrative Code, the injection wells at issue have been properly classified by the Department as Class V, Group 5 injection wells.

35. Petitioner correctly points out that the Navy did not supply information required by Rule 17-28.620(1)(d), Florida Administrative Code, in that there was no identification of any "water supply wells of public record within a 1000 foot radius of the proposed well". Here there was no evidence that there exists such water supply wells that the Navy should have, but did not, identify. Indeed, the record establishes that there is no potable underground drinking water in the immediate vicinity of the proposed wells. While the Navy has the ultimate burden of persuasion in this proceeding, it is within the discretion of the Department to waive the requirement found in Rule 17-28.620(1)(d). Florida courts have given agencies flexibility in interpreting what constitutes "reasonable assurances" and in applying individual permit standards based on the totality of the circumstances. See, Booker Creek Preservation, Inc. v. Mobil Chemical Company, 481 So.2d 10 (Fla. 1st DCA 1985).

    
    

36. Petitioner also points out that the site plan does not specifically delineate, as required by Rule 17-28.620(1)(g), Florida Administrative Code, the area of Palm Avenue that is not a part of Peary Court to be drained by the surface water management system . It is concluded that the Department acted within its discretion in determining that it had sufficient information about the area to be drained by the surface water management system based on the site plans and the other data submitted by the Navy.

    
    

37. Throughout this proceeding Petitioner has contended that the Navy must provide reasonable assurances that surface water quality standards will not be violated. The argument in support of that contention is that the storm water will eventually migrate to either the Key West Lens or to Florida Bay, which is designated as an Outstanding Florida Water. This contention is rejected because surface water quality standards are not part of the Department's permitting criteria for a Class V, Group 5 injection well.

    
    

38. Under Chapter 17-25, Florida Administrative Code, the Department delegated the authority to regulate water quality impacts associated with storm water discharges in the pertinent geographic area to the South Florida Water Management District. The reliance by the Department on the SFWMD's review of the surface water management system is appropriate. See, Rule 17-40.420(4)(a), Florida Administrative Code, which creates a rebuttable presumption that a surface water management system will comply with state water quality standards when the system complies with design and performance criteria.

    
    

39. It is concluded that the Navy has established its entitlement to the subject permit. It is further concluded that the Department should, pursuant to Specific Condition Number 6 contained in the Department's Notice of Intent, review the final permit issued by the South Florida Water Management District for the surface water management system to ensure that no additional conditions to or modifications of the subject permit will be necessary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order issuing the requested

permit for the injection wells with all conditions contained in the notice and intent to issue.

DONE AND ORDERED this 30th day of June, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1993.

ENDNOTE

1/ The issues pertaining to the SFWMD surface water management project were litigated in DOAH Case No. 92-6254. The Navy's Motion for Official Recognition of the Recommended Order that was entered in DOAH Case No. 92-6254 and its Motion for Official Recognition of the Final Order entered by SFWMD are granted, but only to establish the procedural posture of the litigation pertaining to the surface water management permit. No other finding of fact contained herein is based on the Recommended Order or Final Order entered in DOAH Case 92-6254 because the appeal period has not expired for the Final Order and because Mr.

Powell, the Petitioner in this case, was not a party to the litigation in DOAH Case No. 92-6254.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0368

The following rulings are made on the proposed findings of fact submitted by the Petitioner:

1. The proposed findings of fact in paragraphs 1, 7, 10 and 13 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 2, 3, and 8 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made.

   
   

3. The proposed findings of fact in the first sentence of paragraph 4 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of Paragraph 4 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of Paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the fourth sentence of Paragraph 4 are rejected as being contrary to the conclusions reached.

   
   

4. The proposed findings of fact in paragraphs 5 and 6 are rejected as being the recitation of testimony that is subordinate to the findings made.

1. The proposed findings of fact in the first sentence of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact contained in the remainder of paragraph 9 are rejected as being unnecessary to the findings made.

   
   

2. The proposed findings of fact in paragraphs 11 and 12 are rejected as being the recitation of testimony that is contrary, in part, to the findings made.

   
   

3. The proposed findings of fact in paragraph 14 are rejected as being contrary to the greater weight of the evidence and to the findings made.

The following rulings are made on the proposed findings of fact submitted by the Navy:

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23, 26, 27, 28, 29, 32, 33, 34, 35, 37, 39, 40, 42, 45, 46, 47, 48, 50, 51, and 52 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 3, with the exception of the date of filing, are adopted in material part by the Recommended Order.

   
   

3. The proposed findings of fact in paragraphs 20, 22, 44, 53, and 54 are rejected as being unnecessary to the conclusions reached.

   
   

4. The proposed findings of fact in the first sentence of paragraph 24 are adopted in material part by the Recommended Order. The proposed findings in the second sentence of paragraph 24 are rejected as being subordinate to the findings made.

   
   

5. The proposed findings of fact in paragraphs 25, 30, 36, 38, 41, 43, 49, 55, 56, 57, 58, and 59 are rejected as being subordinate to the findings made.

   
   

6. The proposed findings of fact in paragraphs 31 are adopted in part by the Recommended Order to the extent they are not subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted by the Department.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 40, and 41 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unclear. The proposed findings of fact in the last three sentences of paragraph 9 are adopted in material part by the Recommended Order.

   
   

3. The proposed findings of fact in the first sentence of paragraph 26 are adopted in material part by the Recommended Order. The other proposed findings of fact contained in paragraph 26 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in the firs sentence of paragraph 36 are rejected as being unnecessary to the conclusions reached. The other proposed findings of fact contained in paragraph 36 are adopted in material part.

   
   

5. The proposed findings of fact in paragraph 38 are rejected as being subordinate to the findings made.

   
   

6. The proposed findings of fact in paragraph 25 are rejected as being conclusions of law.

COPIES FURNISHED:

Harry B. Powell

615 Whitehead Street Key West, Florida 33040

Herbert Walker, Qualified Representative 1207 Florida Street

Key West, Florida 33040

Stephen A. Beverly, Esquire Assistant Counsel Department of the Navy

Naval Facilities Engineering Command 2155 Eagle Drive

Charleston, South Carolina 29411

Francine M. Ffolkes, Esquire Claire E. Lardner, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson Acting General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

/

FINAL ORDER

On June 30, 1993, a Hearing Officer from the Division of Administrative Hearings, ("DOAH") submitted his Recommended Order to the Petitioner, Harry B. Powell, ("Powell"), and to the Respondents, U.S. Navy, ("Navy") and the State of Florida Department of Environmental Regulation, now known as the Department of Environmental Protection, (hereinafter "Department"). A copy of the Recommended Order is attached hereto as Exhibit A.

On July 15, 1993, Powell filed exceptions to the Recommended Order. The Navy also filed exceptions to the Recommended Order on the same date. On July 26, 1993, the Navy filed its responses to Powell's exceptions. The matter is now before me as Secretary of the Department for final agency action.

BACKGROUND

On September 18, 1992, the Navy submitted to the Department an application for permits to construct not more than seven Class V, Group 5 stormwater injection wells ("injection wells") in Key West, Monroe County, Florida. 1/ The injection wells were proposed to be utilized in conjunction with the operation of a surface water management system for a proposed 160 unit military

housing project for junior officers and their families, referred to as the Peary Court Project (hereafter "the Project").

On December 4, 1992, the Department gave notice of its intent to issue the permits to the Navy for not more than seven Class V Group 5 injection wells to be operated as a part of the Project surface water management system. The Department's notice of intent to issue the permits contained 16 general conditions and 10 specific conditions, none of which were challenged by the Navy.

On December 18, 1992, Powell, a resident of Key West, filed his petition for administrative hearing with the Department. Additional petitions for administrative hearings challenging the Department's notice of intent to issue permits to the Navy for the construction of the injection wells were filed with the Department by Greg Strickland, Bruce Neff, and Jerry Marsh on December 18, 1992. All four of these petitions for administrative hearings were subsequently forwarded to DOAH by the Department for assignment of a hearing officer.

These four challenges to the issuance of the permits to the Navy for the injection wells were combined by DOAH and given DOAH Case No. 93-0368. Hearing Officer, Claude B. Arrington ("Hearing Officer") was assigned to the case by DOAH. The Petitioners, Jerry Marsh, Greg Strickland and Bruce Neff subsequently filed with DOAH notices withdrawing as Petitioners.

On May 11 and 12, 1993, a formal administrative hearing was held before the Hearing Officer in Key West, Florida, pursuant to Section 120.57(1), Florida Statutes. Testimony of factual and expert witnesses and documentary evidence were presented on behalf of Powell, the Navy and the Department at the two day hearing. The key issue before the Hearing Officer was whether the Navy had provided "reasonable assurances" that the construction and utilization of the proposed injection wells would comply with the applicable standards set forth in the governing statutes and rules applicable to the design and construction of underground injection control systems.

Included in the Recommended Order is a critical determination by the Hearing Officer in Paragraph 33 that the Navy had provided the necessary "reasonable assurances" that (1) the injected stormwater would not result in a violation of the minimum criteria and standards for G-II and G-III groundwater and that the proposed injection wells would not cause or contribute to any adverse affects on public health. (Rec. Order, p. 14) 2/ The Hearing Officer ultimately concluded that the Navy had established its entitlement to the permits, and recommended that the Department enter a Final Order issuing the requested permits for the injection wells with all conditions contained in the Notice of Intent to Issue Permit. (Rec. Order, p. 18)

STANDARD OF REVIEW

Powell filed fourteen exceptions to various portions of the Hearing Officer's Findings of Fact and Conclusions of Law, plus additional exceptions to preliminary statement, exceptions to recommendation and an exception to rulings made by the Hearing Officer on Powell's Proposed Findings of Fact. The Navy filed two technical exceptions to the Hearing Officer's Findings of Fact. As a preface to my rulings on the various exceptions, it is appropriate that I comment on the standard of review imposed by law on agencies in reviewing recommended orders entered by hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the entire record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).

Competent, substantial evidence has been defined by the Florida Supreme Court as

such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957)

The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the sole province of the hearing officer. Heifetz v. Debt. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, I am bound by such finding.

RULING ON POWELL'S EXCEPTIONS

Exceptions to Preliminary Statement and Exception to Findings of Fact No. 4. The primary focus of these two exceptions is the ruling of the Hearing

Officer related to the Navy's Motions to Take Official Recognition of the Recommended Order and the Final Order of the South Florida Water Management District in the related DOAH case where the issues pertaining to the Peary Court Project surface water management permit were litigated. The Endnote at Page 19 of the Recommended Order reflects that the Hearing Officer granted the Navy's Motions for the Official Recognition of the Recommended Order and Final Order in DOAH Case No.92-6254, for the limited purpose only of establishing the procedural posture of the litigation pertaining to the surface water management permit.

Powell contends that the Hearing Officer committed various procedural errors in granting the Navy's Motions for Official Recognition of the Recommended and Final Orders in DOAH Case No. 92-6254 in that:

1. Certified copies of the Recommended Order or Final Order were not officially entered into the record in the case.

   
   

2. Both the Recommended Order and Final Order lacked finality, since the time for appeal for the Final Order had not expired at the time that the Hearing Officer ruled on the motions. Powell alleges that the Final Order still lacks finality since two appeals of the Final Order have been filed with the Third District Court of Appeals of Florida and the State of Florida Land and Water Adjudicatory Commission.

   
   

3. No hearing was granted prior to the Hearing Officer's ruling on the motions pursuant to Rule 60Q-2.016(1), F.A.C.

   
   

4. Powell did not have an opportunity under Rule 60Q-2.016(1) to file a memorandum in opposition to the Navy's Motion for Recognition of the Final Order dated June 25, 1993, only five days prior to the entry of the Recommended Order.

The Navy's Motion for Official Recognition of the Recommended Order was initially deficient in that a copy of the Recommended Order was apparently not attached to the Motion. However, the deficiency was subsequently corrected when a copy of the Recommended Order was Attached as Exhibit A to the Final Order, which was made a part of the Navy's Motion for Official Recognition dated June 25, 1993.

My review of Rule 60Q-2.016(1), F.A.C., reflects that there is no absolute requirement under the provisions of this rule that a hearing be granted on all written motions in DOAH proceedings. Thus, no error may be attributed to what appears to be a matter within the sound discretion of the Hearing Officer.

The record does reflect that Powell was not afforded an opportunity to file a memorandum in opposition to the Navy's latter Motion for Official Recognition of the Final Order. However, Powell did file a written objection dated June 11, 1993, to the Navy's earlier Motion for Official Recognition of the Recommended Order. The legal argument and citation of authorities presented in Powell's written objection to the Motion for Recognition of the Recommended Order appear to also essentially apply to the later filed Motion for Official Recognition of the Final Order.

The Hearing Officer's ruling on the Navy's Motion for Official Recognition of the Recommended Order and Final Order in question is in my view, not prejudicial to Powell. To the contrary, this ruling is essentially favorable to Powell because of the limited procedural scope of the ruling and the express caveat contained therein that ". . . No other finding of fact contained herein is based on the Recommended Order or Final Order entered in DOAH Case No. 92-6254 because the appeal period had not expired for the Final Order and because Mr. Powell, the Petitioner, in this case, was not a party to the litigation in DOAH Case No. 92-6254." (Rec. Order, p. 19)

My review of the entire Recommended Order by the Hearing Officer reflects that no substantive Findings of Fact and no Conclusions of Law or Recommendations of the Hearing Officer were based on the provisions of the Recommended Order or Final Order in DOAH Case No. 92-6254. In view of the foregoing, I conclude that any procedural errors related to the Hearing Officer's ruling on the Navy's Motions for Official Recognition of the Recommended Order and Final Order in DOAH Case No. 92-6254 are harmless in nature. Consequently, Powell's Exceptions to the Preliminary Statement and Findings of Fact No. 4 are rejected.

Exception to Findings of Fact No. 2

Powell takes exception to the Hearing Officer's Findings of Fact No. 2 by contending that the matters contained therein are irrelevant and immaterial to the conclusion that the permit should issue." I decline to accept Powell's suggestion that I have the authority to reject this Hearing Officer's Findings of Fact based solely on the belief that the statements therein are immaterial and irrelevant. Questions of irrelevancy and immateriality are evidentiary matters within the province of the Hearing Officer, as the trier of the facts. See Heifetz, supra, at 1281. Under the standard of review set forth in section 120.57(1)(b)10, Florida Statutes, I may not reject or modify a finding unless I first determine that there is no competent, substantial evidence found in the record which would support the finding. I do not make such a determination.

Furthermore, I disagree with Powell's contention that the factual matters contained in this Finding are patently irrelevant and immaterial to the conclusion that the permit should issue. Finding of Fact No. 2 sets forth certain site information and stormwater flow pattern data, which may have some relevance and materiality to this critical issue. Powell's Exception to Finding of Fact No. 2 is rejected.

Exception to Findings of Fact No. 8

Powell takes exception to the first sentence of Findings of Fact No. 8 alleging that "it is contrary to the evidence given by the Navy Project Design Engineer, Rice Creekmore." Powell contends that the Hearing Officer's reference to a single cul-de-sac is erroneous in that the reference should be to plural cul-de-sacs. However, my review of the pertinent portion of the transcript reflects that the Hearing Officer's reference to one cul-de-sac is supported by the totality of the testimony of Mr. Creekmore on this subject. (T., Volume 1, Pages 38-42) Thus, Powell's Exception to Findings of Fact No. 8 is rejected. Exception to Findings of Fact No. 25

I agree with the Navy's Response to Powell's Exception to Findings of Fact No. 25 wherein the Navy points out that Powell obviously has misread the Hearing Officer's Finding in Paragraph 25. The Hearing Officer refers to the Department, not the Navy, as having partially relied on the review by the Southwest Florida Water Management District in reaching its conclusion that the stormwater discharged through the wells will meet water quality criteria after having moved through the surface water management system. This finding is supported by competent, substantial evidence of record. (T. Vol. I, pp. 214, 271-272, Navy's Ex. 3) In fact, the contents of the report of the South Florida Water Management District approving the design of the proposed Peary Court Project surface water management system (and the related testimony of the Navy's expert witness Creekmore) was admitted into evidence at the hearing without any objection from Powell's attorney as to the substance of the report or the expert testimony. (See, T. Vol. I, pp. 20-30) Powell's Exception to Findings of Fact No. 25 is hereby rejected.

Exceptions to Findings of Fact Nos. 26, 27, and 33

In these Exceptions, Powell takes issue with the weight given by the Hearing Officer to the sometimes conflicting opinion testimony given by the various expert witnesses at the hearing. Powell essentially argues that the opinion testimony of his expert, Dr. Ronald Jones, should have been given more weight by the Hearing Officer than given to the opinion testimony of the various expert witnesses presented by the Navy and the Department. This contention clearly goes to the weight and credibility of the evidence presented at the hearing.

The Florida courts have consistently ruled that the decision to accept one expert's testimony over that of another is a matter within the sound discretion of the Hearing Officer and cannot be altered absent a complete lack of competent, substantial evidence from which the finding could reasonably be inferred. See, , Collier Medical Center v. State, Dept. of HRS, 446 So.2d 83,

85 (Fla. 1st DCA 1985); and Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Furthermore, the sufficiency of the facts required to form the opinion of an expert must normally reside with the expert himself, and any deficiencies in the facts required to form an opinion relate to the weight of the evidence. Gershanik v. Dept. of Professional Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984) , rev. den. 462 So.2d 1106 (Fla. 1985).

My review of the transcript indicates that the Navy presented the opinion testimony of three expert witnesses at the hearing. In addition, the opinion testimony of two expert witnesses was presented by the Department. Powell's attorney did voir dire the proffered expert witnesses of the Navy and the Department in an attempt to limit the scope of their expert testimony. However,

the Hearing Officer found the expert witnesses of the Navy and the Department to be qualified to speak on the various water quality issues presented at the hearing. I conclude that the opinion testimony of the five expert witnesses presented by the Navy and the Department constitute competent, substantial evidence of record to support the Findings of Fact contested by Powell here.

Powell's contention that the matters set forth in "Findings of Fact" No. 33 are not pure factual findings is well taken. I view the determinations in paragraph 33 of the Recommended Order to constitute "mixed questions of law and fact," where the law governing the permitting of injection wells is applied to the factual findings of the Hearing Officer. See, Harloff v. City of Sarasota,

575 So.2d 1324, 1328 (Fla. 2d DCA 1991). However, based on my review of the law and the record, I agree with the conclusions in paragraph 33 and determine that the underlying factual findings in this paragraph are based on competent, substantial evidence of record.

Powell's exception to the characterization of paragraph 33 of the Recommended Order as a mere "Finding of Fact" is granted. In all other aspects, Powell's Exceptions to Findings of Fact Nos. 26, 27, and 33 are rejected.

Exception to Conclusion of Law No. 36

In this Exception, Powell requests that I modify the Hearing Officer's Conclusion of Law No. 36 to impose an additional test in this proceeding with regard to the Department's interpretation of it's rules and regulations. Powell suggests that the Department had the burden at the hearing of providing a reasonable explanation for "inconsistent results based upon similar facts." However, Powell does not cite to any evidence presented at the hearing that would reasonably support the imposition upon the Department in this case of an additional test pertaining to alleged "inconsistent results based upon similar facts." My review of the record also failed to identify any factual basis for imposing such an additional test here.

I am of the view that the statement of law set forth in paragraph No. 36 of the Recommended Order is an accurate summary of the governing case law of Florida applicable to the Department's interpretation of its rules and regulations in this case. For these reasons, Powell's Exception to Conclusion of Law No. 36 is rejected.

Exceptions to Conclusions of Law No. 40 and 41

In these exceptions, Powell correctly asserts that the Navy's initial application was technically deficient in failing to provide certain technical data listed in the provisions of of Rule 17-28.620(1)(d) and (g), F.A.C. In numbered paragraphs 40 and 41 of the Recommended Order, the Hearing Officer acknowledges these deficiencies, but essentially concludes that there was sufficient evidence in the record of the hearing to support a ruling of substantial compliance by the Navy with these rule requirements.

The Hearing Officer observes in paragraph 40 that the "the record establishes that there is no potable underground drinking water in the immediate vicinity of the proposed wells." This is a restatement of a factual finding previously set forth in paragraph 21. 3/ This finding of the Hearing Officer appears to be based on a reasonable inference from the evidence presented at the hearing, as applied to the 1000 foot radius distance requirement set forth in Rule 17-28.620(1)(d), F.A.C..

This finding of the Hearing Officer in paragraphs 21 and 40 appears to be supported even by the testimony of Powell's own expert witness, Donald McKenzie. McKenzie, a geologist, had prepared the report used as a basic source of testimony by several of the expert witnesses, entitled "Water Resources Potential of the Freshwater Lens at Key West, Florida." This report was admitted into evidence as Department's Exhibit 1. (T. Vol. I, p. 11) McKenzie had visited the Peary Court site at least six times and had helped to bore monitoring wells in connection with a U.S. Geological Survey investigation. (T. Vol., pp. 419- 422). McKenzie testified that he had not "detected any freshwater in that area" as the result of his investigation. (T. Vol. I, p. 428)

In addition, a diagram consisting of a hydraulic cross section of Key West was admitted into evidence at the hearing as a part of Department's Exhibit 3. (T. Vol. I, p. 233) This diagram was a blow-up of figure 13 found on page 12 of McKenzie's report on the "Water-Resources Potential of the Freshwater Lens at Key West, Florida." This hydraulic cross-section of Key West contained calculations by Dr. Myers relating to the approximate location of the Navy's proposed injection wells to the approximate boundary of the existing freshwater in the Key West lens4 as of October 1986.

The scale index of Dr. Myers' calculations indicate that the Navy's proposed injection wells would be located approximately one-half mile from the nearest freshwater existing in the Key West lens as depicted on the October, 1986 hydraulic cross section. This is over twice the distance of the 1000 foot radius requirement prescribed in Rule 17-28.620(1)(d) relied upon by Powell as a basis for error in this exception. Dr. Myers' calculations are consistent with the testimony presented by Powell's own factual witnesses.

Powell testified that he had a freshwater well, but admitted that he lives approximately 3/4 miles from the Project site. (T. Vol. I, pp. 313-317) Powell also presented the testimony of a Key West resident, Lawrence Bauerle, who testified that his only source of drinking water was from a well located on his property. (T. Vol. I, p. 307) However, Bauerle testified that he lived approximately one-half mile from the proposed Peary Court project, (T. Vol. I,

p. 306), again far beyond the 1000 foot radial distance prescribed in Rule 17- 28.620(1)(d).

Powell's legal position here appears to be based on a misconception of the nature and scope of the administrative hearing in this proceeding. A section

120.57 hearing is not merely an administrative review of a prior agency action, but is a de novo proceeding, intended to formulate final agency action. See, Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786-787 (Fla. 1st DCA 1981); and McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

It was entirely appropriate for the Hearing Officer to have accepted additional evidence at the hearing concerning the Navy's compliance with applicable permit requirements. None of the parties were precluded from presenting evidence at the hearing on matters not previously submitted with the application or included in the Notice of Intent to Issue the permit. See, e.g., Hamilton County Comm'n v. State, 587 So.2d 1378, 1387 (Fla. 1st DCA 1991); and DeCarion v. Department of Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984). Thus, the burden of proof on an applicant in a Section 120.57 de novo hearing relates to the sufficiency of evidence introduced at the hearing in support of the propriety of granting the permit, rather than on the adequacy of data previously submitted in conjunction with the filing of the application for the permit. See, J.W.C. Co., Inc., supra, at pages 788-789.

I agree with Powell's assertion that conclusions of staff personnel of an agency enjoy no presumption of correctness once formal administrative proceedings begin. However, I do not construe the Hearing Officer's conclusions in paragraphs 40 and 41 to expressly or impliedly endorse such a presumption.

Powell also takes exception to the Hearing Officer's reliance on the case of Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1985), case to support the conclusions set forth in paragraph 40. I rule that a limited portion of Powell's exception is well taken related to the Hearing Officer's conclusion that Booker Creek authorizes the Department to waive permitting rule requirements.

I agree with the Hearing Officer's conclusion in paragraph 40 that the Booker Creek decision stands for the proposition that an agency has some flexibility and discretion in interpreting its rules and permit standards based upon the circumstances of a particular case. However, I reject the Hearing Officer's conclusion in the fourth sentence of paragraph 40 that the Booker Creek opinion is legal precedent authorizing the Department to waive mandatory requirements of its permitting rules. The controlling case law of Florida on this point appears to be to the contrary. See, e.g., Gadsden State Bank v.

Lewis, 348 So.2d 343 (Fla. 1st DCA 1977)

In paragraph 41, the Hearing Officer again acknowledges that the Navy's application was technically deficient in failing to supply the site plan data required by Rule 17-28.620(1)(g), F.A.C. However, I also agree with the Hearing Officer's conclusion that the Navy had presented sufficient information about the surface water flow patterns surrounding the project site based on the testimony of the expert witnesses, the Navy's site plans and the South Florida Water Management District report introduced into evidence. For the foregoing reasons, Powell's exceptions to Paragraphs 40 and 41 are rejected, other than as noted in the preceding paragraph.

Exception to Conclusions of Law Nos. 42 and 43.

Powell takes exception here with the last sentence of paragraph No. 42 of the Recommended Order wherein the Hearing Officer concludes that surface water quality standards are not part of the Department's permitting criteria for a Class V, Group V injection well. I find that this conclusion of the Hearing Officer is based upon competent, substantial evidence of record and should be approved. (T. Vol. I, pp. 214, 263-267, 271-272) This conclusion concerning the non-applicability of surface water quality standards to the Department's permitting criteria for the Navy's injection wells proposed by the Navy at the Peary Court site is also consistent with the provisions of the Department's Rule 17-113.100(3)(b), F.A.C., delegating stormwater discharge review duties to the South Florida Water Management District.

Powell also takes exception to the Hearing Officer's reliance in paragraph

43 on Rule 17-40.420(4)(a), F.A.C., establishing a rebuttable presumption that a surface water management system will comply with state water quality standards when the system complies with rules establishing the "design and performance criteria" for stormwater management systems. Powell had every opportunity to present evidence at the hearing to rebut this presumption. However, the Hearing Officer found in paragraph 33 of the Recommended Order that the most persuasive testimony presented at the hearing confirmed the compliance of the Project's

surface water management system with state water quality standards. I determine that this finding of the Hearing Officer is based on competent, substantial evidence of record.

As noted above, the report of the South Florida Water Management District containing that agency's determination that the Peary Court surface water management system satisfied all applicable "design and performance criteria for such systems" was introduced and accepted into evidence at the hearing, with no objection by Powell's attorney as to the substance of the report. (T. Vol. I,

p. 25) The fact that an appeal was subsequently filed challenging the issuance by the Water District of the surface water permit does not, in my opinion, have any adverse affect on the propriety of the Department in relying on this compliance determination by the water district under its own delegation of stormwater permitting authority under Chapter 17-113, Florida Administrative Code.

Powell also makes a cursory argument that the last sentence of Conclusions of Law No. 42 violates rules 17-520.300(5) and 17-520.400(1)(e), F.A.C. However, Powell's exception does not contain any supporting argument to sustain this position. I find this naked assertion of law to be without merit.

For the above reasons, Powell's exceptions to Conclusions of Law No. 42 and

43 are rejected.

Exception to Conclusions of Law No. 44.

Powell's exception to the Hearing Officer's conclusion in paragraph 44 that the Navy has established its entitlement to the subject permits is basically a summary of the prior exceptions, which are incorporated by reference therein.

Based on my rulings to Powell's prior exceptions as noted above, I concur with the Hearing Officer's conclusion that the Navy has established its entitlement to the subject permits. I would observe here that the critical standard for the burden of proof on the Navy in establishing that its proposed injection wells would comply with the applicable permit criteria is "reasonable assurances", and not absolute guarantees that the applicable water quality standards will not be violated. See, Friends of the Everglades, Inc., v. State, 496 So.2d 181, 183 (Fla. 1st DCA 1986); J.W.C. Co., Inc., supra, at 789; and Rule 17-4.070(1),

F.A.C. Powell's exception to Conclusions of Law No. 44 is rejected.

Exception to Recommendation

This exception merely repeats and summarizes the factual contentions and legal arguments raised by Powell in his prior exceptions. I find no significant additional matters raised in this Exception to Recommendation. Consequently, this exception is likewise rejected.

Exceptions to Rulings made on Petitioner's Proposed Findings of Fact

1. I agree with the Hearing Officer's ruling that Powell's proposed findings of fact No. 8 is subordinate to the findings made (See, Findings of Fact Nos. 20-24). This exception is hereby rejected.

   
   

2. The first sentence of Powell's proposed findings of fact No. 4 was actually incorporated into paragraph 40 of the Recommended Order. I agree with the Hearing Officer's ruling that the remainder of Powell's Proposed findings of fact in paragraph 4 are contrary to the greater weight of the evidence or are unnecessary or contrary to the conclusions reached. This exception is rejected.

1. Powell's Proposed Findings of Fact No. 9 again deals with in part with factual matters incorporated in paragraph 4 of the Recommended Order. The remainder of the Proposed Findings of Fact set forth in paragraph 9 have been considered at page 15 of my Final Order. This exception is granted in part by my modification herein of the Hearing Officer's Findings of Fact No. 21 in this Final Order. Therefore, this exception is granted in part and rejected in part, as above stated.

   
   

2. Powell's Proposed Findings of Fact No. 11 and 12 deal primarily with Powell's disagreement with the weight and credibility given by the Hearing Officer to the various expert witnesses. I reject these proposed findings as being contrary to the greater weight of the evidence.

   
   

3. Proposed Findings of Fact No. 14 is also rejected as being contrary to the greater weight of the evidence.

RULING ON REQUEST FOR ORAL ARGUMENT ON NAVY'S EXCEPTIONS

The Navy has requested oral argument before the Secretary of the Department on its Exceptions to the Recommended Order. Rule 17-103.200(3), F.A.C., provides that the Secretary, in her discretion, may grant oral argument.

However, I decline to do so. All parties to this proceeding have had an opportunity to file written exceptions and responses to exceptions in this matter. Based on my review of this case, I conclude that oral argument is not necessary to clarify the issues. Accordingly, the request for oral argument is hereby denied.

RULINGS ON NAVY'S EXCEPTIONS

Findings of Fact No. 8 and 14

The Navy proposes two exceptions proposing certain minor technical changes to portions of the Hearing Officer's Findings of Fact No. 8 and 14. Based upon my review of the transcript I agree with the Navy that the underlined portions of the Hearing Officer's Findings of Fact No. 8 and 14 are not based upon competent, substantial evidence of record. Thus, these technical exceptions of the Navy are granted.

IT IS ORDERED:

1. Finding of Fact No. 8 in the Recommended Order is amended to read as follows:

   
   

   No. 8. With the exception of one cul-de-sac in the northeast corner of the project near the V-notch weir, all runoff draining into the proposed detention areas will flow through grassy swales and inlets. The proposed grassy inlets and swales will transport runoff to the grassy detention ponds at a rate of

   one-quarter to one-half foot per second and thus will provide adequate filtration for the stormwater runoff before it gets to the detention pond. The stormwater that comes from the cul-de-sac will travel through at least 50 feet of grassy detention pond before

   reaching the V-notch weir discharge structure. The water from the cul-de-sac will receive some filtration in the detention pond.

   
   

2. The last sentence of Finding of Fact No. 14 in the Recommended Order is amended to read as follows:

   
   

   . . . Discharge of stormwater down the proposed injection wells will only occur in the ponds when water level in the ponds reach one-foot, six-inches (1.5 NGVD).

   
   

3. Paragraph 21 of the Hearing Officer's Findings of Fact is modified by adding the following finding thereto:

   
   

   The nearest well used as a source of drinking water is located approximately one-half (1/2) mile from the Navy's proposed injection wells.

   
   

4. Paragraph 33 of the Recommended Order is deemed to be a "mixed question of law and fact" rather than a "pure finding of fact." However, the substantive provisions of paragraph 33 are adopted in their entirety.

   
   

5. Conclusions of Law No. 40 is amended to read as follows:

   
   

   No. 40. Petitioner correctly points out that the Navy did not supply information required by Rule 17-28.620(1)(d), F.A.C., in that there was no identification of any "water supply wells of public record within a 1000 foot radius of the proposed well." Here there was no evidence that there exists such water supply wells that the Navy should have, but did not identify. Indeed, the record establishes that there is no potable underground drinking water within the 1000 foot radius requirement of Rule

   17-28.620(1)(d). While the Navy has the ultimate burden of persuasion in this proceeding, the Florida courts has given agencies flexibility in interpreting what constitute "reasonable assurances" and in applying individual permit standards based on the totality of the circumstances. See, Booker Creek Preservation, Inc., v. Mobil Chemical, 481 So.2d 10 (Fla. 1st DCA 1985).

   
   

6. The Recommended Order of the Hearing Officer, with the modifications set forth in paragraphs A through E above, is adopted and is incorporated by reference herein.

   
   

7. The South Florida District Office of the Department is hereby directed to issue to the Respondent, U.S. Navy, permit Nos. UC44-219399, 219400, 219401, 219402, 219403, 219404 and 219405, subject to the same conditions set forth in the Department's Notice of Intent to Issue permits.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 13th day of August, 1993, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

ENDNOTES

1/ Class v, Group 5 injection wells are a miscellaneous group of injection wells that do not meet the criteria for injection wells in Classes I through IV, and are used to drain surface water. (See, Rule 17-28.130(1)(e)5., F.A.C.) (2)

2/ G-II groundwater is defined as potable water use, groundwater in aquifers having a total dissolved solids content of less than 10,000 mg/1. G-III groundwater is defined as non-potable water use, groundwater in unconfined aquifers having a total dissolved solids content of 10,000 mg/1 or greater. (Rule 17-520.410(1), F.A.C.)

3/ The standard for potable (drinkable) water is water having chloride concentrations of 250 mg/1 or less. (T. Vol. I, pp. 222, 229-230; T. Vol. II, p. 425)

4/ The "Key West lens" is a small, thin layer of freshwater, varying in depth from two to ten feet, underlying a portion of Key West (Dept.'s Ex. 1; T. Vol. I, p. 88; T. Vol. II, p. 434)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to:

Stephen A. Beverly, Esquire Herbert Walker, Jr. Office of Counsel Qualified Representative

Southern Division 1207 Florida St

Naval Facilities Engineering Key West Florida 33040 Command

2155 Eagle Dr

Charleston SC 29411-0068

and by hand delivery to:

Claude B. Arrington Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Bldg

The DeSoto Bldg 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee Florida 32399-1550

Tallahassee Florida 32399-1550

Francine M. Ffolkes, Esquire Department of Environmental Protection 2600 Blair Stone Rd

Tallahassee Florida 32399-2400 on this 13th day of August, 1993.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Telephone: (904) 488-9314

Docket for Case No: 93-000368

Orders for Case No: 93-000368