STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT STARR, BETTY ) BRENNEMAN, and JIM DUFF, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1577

) BOCILLA UTILITIES, INC. and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Final hearing was held in Port Charlotte, Florida, on July 31 and August 1, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioners: Robert Starr

Post Office Box 5337

Grove City, Florida 34224

Betty Brenneman Post Office Box 67

Placida, Florida 33946

Jim Duff

Post Office Box 41 Placida, Florida 33946

For Respondent M. Christopher Bryant Bocilla Oertel Hoffman

Utilities: Post Office Box 6507 Tallahassee, Florida 32314-6507

For Respondent Thomas I. Mayton, Jr. Department of Assistant General Counsel

Environmental Department of Environmental Protection Protection: 2600 Blair Stone Road

Tallahassee, Florida 32399-2440

STATEMENT OF THE ISSUE

The issue in this case is whether Bocilla Utilities, Inc. is entitled to a public drinking water construction permit for the expansion of an existing reverse-osmosis water plant located on Don Pedro Island.

PRELIMINARY STATEMENT

By Application for a Public Drinking Water Facility Construction Permit filed January 26, 1995, Bocilla Utilities, Inc. requested a permit for the expansion of its water plant and the addition of two new water wells.

By Intent to Issue dated February 27, 1995, the Department of Environmental Protection stated its intent to issue the permit.

By Petition dated March 17, 1995, Petitioners challenged the issuance of the permit on several grounds.

At the hearing, Bocilla Utilities called five witnesses and offered into evidence 22 exhibits. The Department of Environmental Protection called two witnesses and offered into evidence three exhibits. Petitioners called seven witnesses and offered into evidence 12 exhibits. All exhibits were admitted except Petitioners Exhibits 4, 5, and 7, which were proffered.

The transcript was filed August 8, 1995. Rulings on timely filed proposed recommended orders are in the appendix.

FINDINGS OF FACT

1. Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s for the purpose of supplying water to a residential development being developed by some or all of the principals of the water utility. The residential development is on a bridgeless barrier island in Charlotte County.

   
   

2. Applicant initially proposed locating the plant on the mainland with submerged pipes to the island. This proposal was approved by the Army Corps of Engineers and Department of Environmental Regulation, but the Trustees of the Internal Improvement Trust Fund denied Applicant's request for an easement across submerged state lands.

   
   

3. After failing to obtain a submerged land easement, Applicant obtained the permits to build a reverse-osmosis (RO) water plant at its present location on the barrier island. Included among the permits was a permit from the Department of Natural Resources dated September 11, 1985, allowing Applicant to construct the water treatment plant, two underground concrete water storage tanks, and a tennis court on top of the tanks up to 100 feet seaward of the coastal construction control line.

   
   

4. Applicant is a certificated utility that, since September 1994, has been regulated by the Public Service Commission. It was previously regulated by Charlotte County.

   
   

5. By Application for a Public Drinking Water Facility Construction Permit filed January 26, 1995 (Application), Applicant requested a permit to expand the treatment capacity of its water plant from 30,000 gallons per day (gpd) to 120,000 gpd. By installing the new treatment equipment in two stages, the plant would have an immediate capacity of 60,000 gpd. Applicant proposes no material

   changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment.

   
   

6. The Application form asks Applicant to identify any well construction permits obtained from the water management district and to provide a map showing any sanitary hazards within 500 feet of each proposed well. The Application form requires Applicant's professional engineer to attest that the project complies with Chapter 62-555, Florida Administrative Code. The Engineering Report attached to the completed Application supplies the requested information, but explains that Applicant's hydrogeologist had not, as of the date of the report, obtained the well-construction permits from the water management district.

   
   

7. By Intent to Issue dated February 27, 1995, the Department of Environmental Protection (DEP) gave notice of its intent to issue the requested permit. Noting that it has permitting jurisdiction under Section 403.861(9), Florida Statutes, and that the project is not exempt, DEP determined that a public drinking water construction permit is required for the proposed work.

   The Intent to Issue is based on DEP's

   
   

   belief that reasonable assurances have been provided to indicate that the proposed project will not adversely impact water quality and the proposed project will comply with the

   appropriate provisions of Florida Administrative Code Rules 62-4, 62-550, 62- 555 and 62-699.

   
   

8. Petitioners timely objected to the issuance of the proposed permit. Petitioners reside in Applicant's certificated area on the barrier island. They presently obtain their water from private wells or cisterns, rather than Applicant. If the permit were granted so as to expand Applicant's production capacity, Petitioners would be more likely required to obtain water from Applicant due to Charlotte County's mandatory hookup ordinance.

   
   

9. About a week before filing the Application, Applicant applied on January 20, 1995, to the Southwest Florida Water Management District (SWFWMD) for permits for the construction of the two wells included in the draft permit.

   
   

10. SWFWMD granted these permits on February 8, 1995, about three weeks after receiving the applications. Consistent with its normal practice in granting well-construction permits, SWFWMD did not provide interested persons with a point of entry to challenge the permits.

    
    

11. The SWFWMD permits provide in part:

    
    

    1. Compliance with state and local county health regulations as per Chapter 17-555, Florida Administrative Code (F.A.C.), is required via the Drinking Water System Permit.

    2. Compliance with Chapters 17-532 and 17- 555, F.A.C., on construction standards and grouting procedures for Public Supply Wells shall be followed.

       * * *

       1. This well site has been judged as satisfactory based on the location and information provided to [SWFWMD] at the time of the well site inspection.

          . . .

          * * *

          1. Public Supply Wells must meet certain setback requirements from all potential sources of contamination. To obtain and retain your Drinking Water System Permit, please coordinate any future development of the surrounding property within 200' of your well site with the Charlotte County Health Department.

       * * *

       
       

12. By letter dated February 14, 1995, from a SWFWMD representative to Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted Applicant a setback variance of 100 feet from nearby septic systems in permitting the two new wells. The letter states that the "variance is based upon the known geohydrology of the area and the proposed construction of the wells," as well as an understanding that the "existing public system is working out with no problems."

    
    

13. A month later, a letter from a DEP engineer identifies various types of sanitary hazards and implicitly ratifies the setback variance granted by SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards as septic tank systems, sewer lines, swimming pools and associated chemicals, pet excretions, and residential chemicals such as pesticides, fertilizers, paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had granted a variance from 200 feet to 100 feet "due to geologic and treatment conditions," but cautions that "any further decrease in setbacks for sanitary hazards would be imprudent."

    
    

14. Applicant's water plant is located on Don Pedro Island, which is part of an island chain consisting, from north to south, of Knight Island, Don Pedro Island, and, usually, Little Gasparilla Island. The low-lying island chain fronts the Gulf of Mexico on the west. The northern end of the island chain abuts Lemon Bay on the east. Over the years, storms have opened and closed passes at various points along the island chain. The island chain is vulnerable to flooding, and some areas are more vulnerable than others.

    
    

15. One of the historic passes is Bocilla Pass. The plant site area is about a half mile south of this now-closed pass. The Gulf beaches on either side of the point at which the Bocilla Pass emptied into the Gulf have suffered considerable erosion in recent years, to the point that recently built homes have been inundated by water and had to be removed or razed.

    
    

16. The plant site area includes the building housing the water treatment and other equipment, two 50,000-gallon storage tanks immediately to the west of the building, the existing water supply well located just east of the building, and the two proposed water supply wells located a short distance east and south of the building.

    
    

17. The existing storage tanks, which mark the westernmost extent of the plant site area, are about 235 feet east of a pronounced erosion line along the Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately adjacent to the tanks is the building housing the water treatment equipment. The two proposed wells would be located about 200 and 450 feet south of the tanks.

18. The plant site area is much closer to water on the east. The southerly proposed well is about 12 feet west of the mean high water line of Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the mean high water line of Bocilla Lagoon. The building housing the water treatment equipment is further away from the water, but still less than 50 feet.

    
    

19. Bocilla Lagoon is a long and narrow waterway that was dredged in a north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed off by land less than a quarter of a mile south of the plant site area. The lagoon runs to the north to connect to what remains of Bocilla Pass, which then runs easterly a short distance to a dredged extension of Lemon Bay.

    
    

20. The building housing the water treatment equipment and the storage tanks are not located in the vulnerable FEMA V[elocity] zone. However, the record does not establish the location of the proposed wells relative to the V- zone. Testimony concerning the location of the V-zone relative to the water plant establishes only that the building, not the two proposed wells, are safely outside the V-zone. Nothing in the record establishes contour lines on the barrier island in the vicinity of the plant site area or the elevation of the land at the site of the two proposed wells.

    
    

21. Applicant has recently upgraded the security of the storage tanks through the addition of locks to the manholes. The installation of fences is impractical and unnecessary because the tanks are topped by a six-inch, reinforced slab of concrete that also serves as tennis courts.

    
    

22. The proposed wells would be well constructed. They would extend 167 feet into a confined artesian aquifer. The concrete pressurized grouting coupled with a potentiometric surface of seven feet make it unlikely that the wells would be vulnerable to contaminants. During severe-storm conditions, pumping would cease, leaving the system in its naturally pressurized state, so that surface water could not easily flow down into the well. Additionally, the RO filtration technology is one of the most effective at eliminating contaminants from drinking water.

    
    

23. However, failing to have shown that the two proposed wells are outside the V-zone, Applicant has also failed to provide reasonable assurances that the two proposed wells would be protected from damage from the velocity wave action associated with the V-zone.

    
    

24. Applicant has constructed and operated the water plant in an exemplary fashion. Applicant has at all times met or exceeded applicable standards for water quality, safety, and operations. Original construction exceeded minimum requirements and added to the durability of the fixtures. The building housing the water treatment equipment and hydropneumatic tank has been issued a floodproofing certificate by a registered engineer. The certificate states that, with human intervention in the form of bolting predrilled plywood boards over openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD.

    
    

25. Applicant employs an operations manager with a Class A license rather than one with merely a Class C license, even though only a Class C operator is required for a water plant of this size. Also, Applicant maintains a low-level chlorine indicator, even though not required to do so due to the small size of the utility.

26. The relevant sewage flows from the quantity of water that would be drawn by each proposed well would be greater than 2000 gpd.

    
    

27. Near the proposed wells are single- and multi-family residences served by on-site sewage disposal systems, the above- described road, a swimming pool on the other side of the road, an injection well, and the treatment plant at which Applicant stores anti-scaling agents, ammonia, chlorine, and acid. However, Applicant has shown that none of these items is within 100 feet of the proposed wells. Bocilla Lagoon is not a sanitary hazard at this time.

    
    

28. The two deficiencies in Applicant's proof relate solely to the susceptibility of the proposed wells to a significant risk of damage from flooding and other disasters and the location of the proposed wells relative to areas least subject to localized flooding. In all other respects, such as fire flow and security, Applicant has provided reasonable assurances that the applicable criteria would be satisfied or that the proposed work would have no bearing on the issue raised by Petitioners.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

30. Applicant and DEP stipulated to Petitioners' standing. Absent the stipulation, Petitioners have standing as residents of the island chain who, as a result of the proposed expansion of capacity, would be more likely to be required to hookup to Applicant's expanded service due to Charlotte County's mandatory hookup ordinance.

    
    

31. Rule 62-555.530(1) requires DEP to evaluate each application for a public water supply permit for compliance with applicable water quality standards, which are not at issue in this case, and for "[a]dequate engineering design complying with acceptable engineering principles as established in Rule 62- 555.310 through .360, F.A.C." Rule 62-555.530(2) provides that DEP "shall either issue or deny a permit pursuant to Chapter 120, F.S."

    
    

32. Rule 62-555.300 explains the purpose of Rules 62- 555.310 through .360 as follows:

    
    

    The quality of drinking water when it ultimately reaches the consumer depends on the construction, operation, and maintenance of a public water system. The following rules establish requirements for construction, operation, and maintenance of a public water system and cover all aspects of a public water system from collection through treatment, storage, and distribution.

    
    

33. Two rules are relevant to this case. Rule 62-555.310 provides:

Raw water shall be obtained from the most desirable source that is available, and an effort shall be made to prevent or control contamination of the source. The plant site area shall not be subject to a significant risk from earthquakes, floods,

fires, or other disasters which could cause a breakdown of the public water system or any portion thereof.

34. Rule 62-555.312 states:

The following setback distances around public drinking water supply wells apply to newly constructed wells. However, the 100 and 200 foot setback distances which have been in effect since November 9, 1977 and December 13, 1983, respectively remain in effect.

(1) Public drinking water supply wells that serve water systems having total sewage flows greater than 2,000 gallons per day shall be placed no closer than 200 feet from on-site sewage disposal systems (septic tanks) other than land application of reclaimed water areas.

Public drinking water supply wells serving water systems having total sewage flows of less than or equal to 2,000 gallons per day shall be placed no closer than 100 feet from on-site sewage disposal systems (septic tanks) other than land application of reclaimed water areas.

* * *

1. Public drinking water supply wells shall be located no closer than 100 feet from other sanitary hazards as defined in Rule 62- 550.200, F.A.C.

2. Public drinking water supply wells shall be located on ground least subject to localized flooding, and as far as is practical when the direction of ground water slope or movement is known, wells shall be located on the upstream side of sanitary hazards.

3. [DEP] or appropriate water management district shall decrease or increase these

distances when approving well construction permits, if justified, by the presence or absence of

natural barriers such as impermeable geological strata, adequate protection by treatment, or proper construction practices.

1. The remaining rules in Rules 62-555.310 through .360 are not directly relevant to this case. These rules govern the location of water mains; well- drilling methods (Rule 62- 555.315); water treatment, storage, and distribution; fluoridation; cleaning and disinfection; post-construction certification by DEP; operation and maintenance; water testing; and cross- connections.

   
   

2. The rules do not define "plant site area." Rule 62- 550.200(55) defines "sanitary hazard" as a "physical condition which involves or affects any part of a drinking water system or the raw water source, and that creates an imminent or potentially serious risk to the health of any person who consumes water from that system."

3. Applicant and DEP raise two major contentions concerning the scope of review that DEP should properly give the Application. The first argument is that DEP has delegated to SWFWMD the responsibility for ensuring that the two proposed wells are suitably located.

   
   

4. The statutes and rules do not clearly divide responsibilities between DEP and the water management districts in permitting public supply water wells. But DEP cannot defer this decision entirely to SWFWMD for several reasons.

   
   

5. Even if DEP delegates to the water management districts the authority over the location of public water supply wells, DEP does not necessarily deprive itself of authority over the location of public supply wells. Section 373.308(1) authorizes DEP to delegate to the water management districts the authority for issuing permits for the "location [and] construction" of water wells. But Section 373.308(4) adds that this delegation is not necessarily absolute:

Notwithstanding the provision in this section

for delegation of authority to a water management district, [DEP] may prescribe minimum standards for the location [and] construction of water wells throughout all or parts of the state, as may be determined by [DEP].

40. Sections 403.852(12)(d)2, 403.853(1)(a), and 403.861(7) and (9)

require DEP to adopt rules concerning public drinking water supplies. Exercising this authority, DEP adopted Rules 62- 555.310 through 62-555.360 and 62-555.530.

1. DEP's rules acknowledge the role of the water management districts in issuing permits to construct public water supply wells. Rule 62-555.510(2) requires:

   
   

   Before construction of a public water supply well, the licensed water well contractor shall obtain an application form from and apply to the appropriate water management district for a permit to construct the well in accordance with Rule 62-555.315 and Chapter 62-532, F.A.C., and Chapter 373, Part III, F.S.

   
   

2. The reference to Rule 62-555.315, which is a detailed rule governing well-drilling methods, arguably stresses the role of the water management districts in reviewing technical well- construction specifications. But the omission of a similar express reference to the location of wells undermines the absolute-delegation argument of Applicant and DEP on this point.

   
   

3. In any event, nothing in the rules implies that DEP must defer absolutely to a water management district in applying the locational criteria governing water wells, as set forth in Rule 62-555.312. DEP's rules contemplate that the construction of a public water supply well will require a permit from the water management district and a permit from DEP.

   
   

4. Rule 62-555.520 requires the applicant, prior to "commencing construction or alteration," to use the same form on which the Application was made in this case to apply "to [DEP]" for a construction permit. The application form suggests that DEP anticipates an applicant will obtain a well-

   construction permit from a water management district, but that DEP will also undertake its own review of this information, at least as to the location of the well.

   
   

5. For instance, DEP's application form requests a map showing sanitary hazards within 500 feet of the proposed well. If the water management district permit resolved all siting questions of the proximity of the water well to sanitary hazards, DEP would not require this information on its application form.

   
   

6. The only textual support for the argument of Applicant and DEP is Rule 62-555.312(6), which states that DEP "or" the water management district may change setbacks for good cause. This language does not necessarily preclude DEP from exercising jurisdiction over the location of public water supply wells. In any event, setbacks are only part of the locational criteria, and the disjunctive reference to the water management district or DEP is too slim a basis on which to conclude that, in issuing public water supply construction permits, DEP is prohibited from considering the locational criteria in Rule 62- 555.312.

   
   

7. The argument of Applicant and DEP that DEP cannot consider locational criteria fails for another reason. If the responsibility for applying the locational criteria fell exclusively to the water management district, substantially affected persons such as Petitioners would lose their right, under Chapter 120, Florida Statutes, to a formal hearing on these issues prior to the issuance of the public water supply construction permit. Without regard to whether these rights are extended by constitutional, statutory, or decisional law, DEP's Rule 62-555.530(2) expressly guarantees that the issuance and denial of permits will be governed by Chapter 120, Florida Statutes.

   
   

8. Thus, regardless whether SWFWMD applied the locational criteria of Rules 62-555.310 through 62-555.360 in issuing the two well-construction permits, DEP must also apply these criteria in deciding whether to issue the public water supply construction permit sought in this case.

   
   

9. The setback for sanitary hazards is 100 feet except that it is, in this case, 200 feet for septic tanks. DEP properly approved SWFWMD's reduction of setbacks from sanitary hazards from 200 feet to 100 feet based on the depth of the proposed wells; the proposed method of construction; the use of a confined, well pressurized artesian aquifer, and the effectiveness of the proposed RO treatment method. However, no reduction below 100 feet is permissible.

   
   

10. Applicant has provided reasonable assurances that the two proposed wells satisfy the setback requirements of Rule 62- 555.312(1), (4), and (6). There are no sanitary hazards within 100 feet of either proposed well. The only potential sanitary hazard within 100 feet of either well is Bocilla Lagoon, but the record does not suggest that water quality of the lagoon constitutes a sanitary hazard.

    
    

11. However, Applicant has failed to provide reasonable assurances that the location of the proposed wells satisfies the requirements of Rule 62- 555.312(5), which is the only part of Rule 62-555.312 not addressing setbacks from sanitary hazards.

    
    

12. Rule 62-555.312(5) contains two requirements. First, public drinking water supply wells must be located on "ground least subject to localized

    flooding." Second, "as far as practical when the direction of ground water slope of movement is known," wells must be located on the upstream side of sanitary hazards.

    
    

13. The second part of subsection (5) is not applicable. This part of the rule is qualified by the clause, "as far as is practical when the direction of ground water slope or movement is known." There is no indication that the direction of ground water slope is known, so the second part of the rule has no bearing on this case. In any event, the second part of the rule is not only conditioned by knowledge of the direction of groundwater slope or movement, but also by the qualification that the location is governed by the rule requirement only "as far as is practical."

    
    

14. By contrast, the first part of subsection (5) is not conditioned upon any knowledge of local conditions or the qualification of practicality. The first part of the rule says that public drinking water supply wells shall be located on "ground least subject to localized flooding."

    
    

15. The first part of Rule 62-555.312(5) thus requires a determination that, if the local area is flooded, then the proposed wells must be on ground that is the last site within the local area to flood. The first part of subsection (5) ignores widespread flooding, but not localized flooding.

    
    

16. Absolutely nothing in the record indicates that the proposed wells are on ground least subject to localized flooding. DEP has not disclosed its interpretation of the phrases, "least subject" and "localized flooding." The close proximity of the proposed wells to the mean high water line of Bocilla Lagoon demands that Applicant and DEP address the location of the proposed wells with respect to the extent to which they would be subject to localized flooding. Applicant has not provided reasonable assurances as to this requirement of Rule 62- 555.312(5).

    
    

17. The proposed wells would be well constructed and, due to their potentiometric surfaces, relatively unsusceptible to contamination. But Rule 62-555.312(5) focuses on susceptibility to localized flooding and makes no exceptions for quality constructed wells, pressurized aquifers, or effective filtration systems. Subsection (5) addresses the safety of public water supply wells by ensuring that they are placed in areas least subject to localized flooding, rather than relying entirely on quality well construction, positively pressurized aquifers, and RO filtration systems.

    
    

18. Rule 62-555.310 also supplies locational criteria for the "plant site area," which includes the building and its contents, including the proposed new water treatment equipment. Applicant and DEP argue that the locational criteria of Rule 62- 555.310 are inapplicable to the proposed expansion involving the water treatment equipment. They point out that Applicant is seeking a permit for the expansion--not initial construction--of a water treatment plant.

    
    

19. The Application is for a permit to quadruple capacity to 120,000 gpd through the replacement of RO filters and the addition of two new supply wells. Rule 62-555.310 states that the "plant site area shall not be subject to a significant risk from . . . floods, fires, or other disasters which could cause a breakdown of the public water system or any portion thereof."

    
    

20. Mr. Maier conceded that a vast plant expansion would require review of the plant site area. His reasoning was that such an expansion would involve the removal and addition of considerable equipment and would represent a fundamental

    change in the plant. But he contended that the present expansion was not so extensive as to trigger such review.

    
    

21. Obviously, there are alterations to water plants that do not add to capacity. Treatment systems may be changed or updated, and storage tanks and distribution systems may be replaced. Earlier permits for the plant site area entitled the permittee to construct and operate a plant of the permitted capacity at a specific area. Thus, reviewing later requests for permits to alter treatment systems, storage tanks, and distribution systems, without increasing capacity, should not normally trigger reconsideration of the original approval of the location of the plant site area. Request for permits to alter without any increase in capacity means that service remains the same in terms of the extent of public reliance on specific quantities of water, and the risk remains the same in terms of the extent of public harm in the event of the interruption of such service.

    
    

22. In this case, Applicant seeks a permit to alter a system by increasing its capacity by four times. This means that the public reliance on Applicant's water is increased four times, and the public harm in the event of the interruption of service is increased four times. The assessment of risk, by rule, addresses the consequence of the breakdown in the public water system and necessarily the extent of public harm done by such a breakdown. When Applicant's water plant was originally permitted, an interruption in service harmed one-quarter of the public that would come to rely on the expanded capacity for which Applicant now seeks approval.

    
    

23. Thus, Rule 62-555.310 applies to the Application and the plant site area subject to alteration.

    
    

24. Applicant has provided reasonable assurances that the new water treatment equipment is not subject to a significant risk from floods, fires, or other disasters that could cause a breakdown of the public water system or any portion thereof. The risk to the building and its contents from flooding is adequately attenuated by the location of the building outside of the more dangerous V-zone and its compliance with FEMA floodproofing standards. Notwithstanding some evidence concerning inadequate fire flows, there is no real reason to doubt that the plant site area suffers a significant risk of damage from fire. As Applicant pointed out, seawater to fight fires is plentiful on the island.

    
    

25. Rule 62-555.310 also applies to the two proposed wells, which, in this case, are part of the "plant site area." The rule does not refer only to the "plant" itself, but rather extends to the entire "plant site area." The purpose of the rule is to prevent breakdowns in the public water supply system, of which a crucial part is the water supply well. In this case, the inclusion of the proposed wells in the plant site area is reinforced by their close proximity to the water treatment equipment, storage tanks, and pumps.

    
    

26. Applicant has failed to provide reasonable assurances that the proposed wells are not subject to significant risk of damage from flooding or other disasters, including wave action. Quality well construction, a pressurized aquifer, and an RO treatment system tend to reduce the susceptibility of the wells to damage from flooding and possibly wave action. But Applicant has not provided reasonable assurances that the remaining risk satisfies the criteria of Rule 62-555.310 in terms of the extent of risk and resulting damage.

    
    

27. Applicant's request for attorneys' fees and costs is denied.

RECOMMENDATION

It is

RECOMMENDED that the Department of Professional Regulation enter a final order denying the application of Bocilla Utilities, Inc. for a public water supply construction permit.

ENTERED on August 25, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on August 25, 1995.

APPENDIX

Rulings on Respondents' Proposed Findings

1-4: adopted or adopted in substance.

5: rejected as irrelevant and repetitious.

6-7 (except last sentence): adopted or adopted in substance.

1. (last sentence): rejected as unsupported by the appropriate weight of the evidence and legal argument.

2. (except last sentence): rejected as subordinate, recitation of testimony, and irrelevant.

8 (last sentence): adopted or adopted in substance. 9: rejected as irrelevant.

10: adopted or adopted in substance, except to extent of legal argument as to effect of action of SWFWMD in granting variance.

11-12: rejected as irrelevant.

13 (except last sentence): adopted or adopted in substance.

13 (last sentence): rejected as irrelevant.

14-17 (except last sentence): adopted or adopted in substance.

17 (last sentence): rejected as legal argument. 18-21: adopted or adopted in substance.

22: rejected as unnecessary.

23: adopted or adopted in substance as to protection from only sanitary hazards.

24-26: adopted or adopted in substance as to description of aquifer, proposed well construction, and efficiency of RO filtration process, but not as reasons in support of Paragraph 23.

27 (first sentence): adopted or adopted in substance.

27 (remainder): rejected as unnecessary.

28: adopted or adopted in substance. 29: rejected as unnecessary.

30-31: adopted or adopted in substance. 32: rejected as irrelevant.

33-40: rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

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

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Robert Starr

P.O. Box 5337

Grove City, FL 34224

Betty Brenneman

P.O. Box 67 Placida, FL 33946

Jim Duff

P.O. Box 41 Placida, FL 33946

M. Christopher Bryant Oertel Hoffman

P.O. Box 6507

Tallahassee, FL 32314-6507

Thomas I. Mayton, Jr. Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2440

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 10 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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ROBERT STARR, BETTY BRENNEMAN, and JIM DUFF,

Petitioners,

vs. OGC Case No. 95-0665

DOAH Case No. 95-1577

BOCILLA UTILITIES, INC. and DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

FINAL ORDER

On August 25, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department") 1/ Copies of the Recommended Order were served upon the Petitioners, Robert Starr, Betty Brenneman, and Jim Duff (hereafter "Petitioners"), and upon the Respondent, Bocilla Utilities, Inc. (hereafter "Utility"). A copy of the Recommended Order is attached hereto as Exhibit A.

On September 11, the Respondents 2/ timely filed joint Exceptions to Recommended Order and a joint Request for Official Recognition. The Utility also simultaneously filed a Request for Oral Argument. No exceptions or responses were filed by the pro se Petitioners. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

The Utility is a private utility owning and operating an existing public drinking water plant located on Don Pedro Island. 3/ Don Pedro Island is a bridgeless barrier island in the Gulf of Mexico and is located within the geographical boundaries of Charlotte County, Florida. The Utility is currently regulated by the Public Service Commission and provides water to customers of a residential development on the island. Petitioners live on Don Pedro Island and have residences within the Utility's certificated area, but are not present customers of the Utility. Petitioners presently obtain their water from private wells or cisterns, but may be required to obtain water from the Utility in the future due to Charlotte County's mandatory hookup ordinance.

The Utility filed an Application for a Public Drinking Water Facility Construction Permit (hereafter "Application") with the Department on January 26, 1995. (Utility Ex. 1) The Application requested a permit to expand the treatment capacity of its water plant from 30,000 gallons per day (gpd) to

120,000 gpd. By installing the new treatment equipment in two stages, the plane would have an immediate capacity of 60,000 gpd. The Application proposed no material changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment.

On February 27, 1995, the Department executed a Notice of Intent to Issue the requested permit to the Utility. (Utility Ex. 8) The Notice of Intent to Issue observed that the Department has permitting jurisdiction under Section 403.861(9), Florida Statutes, and that the project was not exempt. The Notice of Intent to Issue also contained a Department determination that a public drinking water construction permit is required for the proposed work. The Intent to Issue the permit was based on the Department's stated "belief that reasonable assurances have been provided to indicate that the proposed project will not adversely impact water quality and the proposed project will comply with the appropriate provisions of Florida Administrative Code Rules 62-4, 62- 550, 62-555 and 62-669." Petitioners subsequently filed a timely petition challenging the issuance of the proposed permit and requesting a formal hearing.

About a week before filing the Application with the Department, the Utility also applied to the Southwest Florida Water Management District (hereafter "Water District") for permits to construct two new water wells referred to in the Application filed with the Department. The Water District granted these well permits on February 8, 1995. The Water District apparently did not provide the Petitioners with a point of entry to challenge the water well permits.

The Utility plant site area includes the building housing the water treatment and other equipment, two 50,000-gallon storage tanks immediately to the west of the building, the existing water supply well located just east of the building, and the two proposed water supply wells located a short distance east and south of the building. The existing storage tanks, which mark the westernmost extent of the plant site area, are about 235 feet east of a pronounced erosion line along the Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately adjacent to the tanks is the building housing the water treatment equipment. The two proposed wells would be located about

200 and 450 feet south of the tanks. Near the proposed wells are single and multi-family residences served by on-site sewage disposal systems.

A formal administrative hearing was held on July 31 and August 1, 1995, before DOAH Hearing Officer Robert E. Meale (hereafter "Hearing Officer"). Each of the parties presented the testimony of witnesses and had various exhibits admitted into evidence. Proposed Recommended Order were filed by the parties after the hearing and the Hearing Officer subsequently entered his Recommended Order on August 25, 1995.

The Hearing Officer found that the Utility had failed to establish that the two proposed wells (1) would not be susceptible to a significant risk of damage from flooding and other disasters and (2) were to be located on ground least subject to localized flooding. In view of these critical findings, the Hearing Officer concluded that the Utility had failed to provide reasonable assurances that its proposed water treatment expansion project would not violate the provisions of Rules 62-555.310 and 62-555.312(5), Florida Administrative Code.

The Hearing Officer also made a related critical ruling of law that the Department had not totally delegated to the Water District all responsibility and authority to consider questions related to the adequacy of proposed water wells identified in the wager treatment system-expansion application before the

Department for review. The Hearing Officer ultimately recommended that the Department enter a Final Order denying the Utility's application for a permit to expand the water treatment capacity of its existing water treatment plant on Don Pedro Island.

RULING ON UTILITY'S REQUEST FOR ORAL ARGUMENT

The Utility filed a Request for Oral Argument before the Secretary in connection with the agency review of its exceptions to the Hearing Officer's Recommended Order. The provisions of Rule 62-103.200(3), Florida Administrative Code, state that the Secretary of the Department, in her discretion, may grant oral argument in support of a party's exceptions to a Recommended Order submitted by a DOAH hearing officer. The matters before the Secretary for consideration in this case are adequately set forth in the thorough joint written Exceptions to Recommended Order filed by the Utility and the Department, and oral argument is not necessary to clarify the issues. Accordingly, the Utility's Request for Oral Argument is denied.

RULING ON RESPONDENTS' REQUEST FOR OFFICIAL RECOGNITION

The joint request filed by the Utility and the Department asks the Secretary to take official recognition of a delegation order filed on July 12, 1984, by the Secretary of the former Department of Environmental Regulation.

Section 120.61, Florida Statutes, and Rule 60Q-2.020, Florida Administrative Code, do provide for official recognition by hearing officers in formal administrative proceedings of any matters that may be judicially noticed by the courts of this state. This delegation order, however, was not submitted to the Hearing Officer for official recognition in the DOAH formal proceedings.

In the process of considering exceptions to a recommended order of a DOAH hearing officer, the Secretary performs a review function comparable to an appellate court. Pursuant to Section 120.57(1)(b)10, Florida Statutes, the Secretary may not reject or modify the findings of fact of the Hearing Officer, unless she "first determines from a review of the complete record . . . that the findings of fact were not based on competent substantial evidence" or that the DOAH proceedings "did not comply with essential requirements of law." (emphasis supplied) Thus, it would be improper for the Secretary to modify or reject any of the findings of fact of the Hearing Officer in this case based on the contents of a 1984 delegation order of the Secretary of DER which was not before the Hearing Officer for consideration and is not a part of the record of the DOAH proceedings on agency review. See Thornber v. City of Fort Walton Beach,

534 So.2d 754 (Fla. 1st DCA 1988); Rosenberg v. Rosenberg, 511 So.2d 593, 595 (Fla. 3d DCA 1987), footnote 3.

Respondents' Request for Official Recognition is denied.

RULINGS ON RESPONDENTS' EXCEPTIONS TO RECOMMENDED ORDER Exception I.

This exception take issue with a portion of the last sentence of Finding of Fact 14 wherein the Hearing Officer found that the island chain is vulnerable to flooding, "and some areas are more vulnerable [to flooding] than others." The Respondents concede in their exceptions that the evidence before the Hearing Officer established that that there have been occasions when waters from the Gulf of Mexico have flowed over the low-lying Don Pedro Island Into Bocilla Lagoon, a dredged canal located in the interior of the Island. Respondents contend that there was no evidence that some portions of the Island are more vulnerable to flooding than others.

The record does contain some evidence which would appear to support a permissible inference by the Hearing Officer that some areas of Don Pedro Island are more vulnerable to flooding than others. Petitioners' Composite Exhibit 11 (containing a collection of beachfront and aerial photographs) and and the related testimony of Petitioners Betty Brenneman and Jim Duff seem to fairly support a finding that the beach-front areas of Don Pedro Island immediately adjacent to the waters of the Gulf of Mexico would appear to be more vulnerable to flooding than more interior Island areas to the east, which may receive some protection from a "high berm" along the Gulf side of the Island. (Tr. Vol. III, 16-42; 61-62)

Under Section 120.57(1)(b)10, Florida Statutes, the findings of fact of a hearing officer may not be rejected or modified by a reviewing agency, unless the agency first determines from a review of the complete record 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. Also, a reviewing agency is not free to modify or reject a hearing officer's findings of fact to fit a conclusion desired by it or by a party by interpreting the evidence or drawing inferences therefrom in a manner different from permissible interpretations made and inferences drawn by a hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281- 1282 (Fla. 1st DCA 1985)

Consequently, Respondents' Exception I. is denied. Exceptions II. and III.

In these exceptions, the Utility and the Department challenge the correctness of the Hearing Officer's findings in the second and third sentences of Finding of Fact 20 and in Finding of Fact 28. These findings of the Hearing Officer relate to the purported failure of the Utility to establish that the proposed location of the two new wells would be "safely outside" the Federal Emergency Management Agency ("FEMA") velocity zone ("V-zone"), 4/ and the failure to "provide reasonable assurances that the two proposed wells would be protected from damage from the velocity wave action associated with the V-zone." The Respondents contend in their exceptions that (1) there is no evidence of record that any portion of Don Pedro Island is located in a FEMA V-zone, and (2) there are no provisions in the rules of the Department or the Water District applicable to construction of public water wells prohibiting the location of drinking water wells within a FEMA V-zone.

The record reflects that the issue of the location of the two new proposed- wells in relation to a FEMA V-zone was not interjected in this case by the Petitioners or Respondents, but was first raised on direct questioning by the Hearing Officer of the Utility's witness John Bosserman. (Tr. Vol. II., 79-80) The Respondents' exceptions suggest that the Hearing Officer's questions concerning the FEMA V-zone did not arise out of the record in this case, but were the result of the Hearing Officer's personal knowledge acquired in another unrelated administrative hearing not involving the parties in this proceeding.

I will not consider this suggestion of the Hearing Officer improperly taking notice of facts outside the record because my review of the Recommended Order is based entirely on the record as it has been presented to me in connection with the Respondents' exceptions. See City of Miami v. St. Joe Paper Co., 347 So.2d 622, 624 (Fla. 3d DCA 1977)

In any event, I concur with the Respondents' argument that that the rules of the Water District and the Department setting forth the criteria for location of public water wells do not contain any provisions prohibiting the location of

drinking water wells in a FEMA V-zone. See Rules 40D-3.505 and 62-555.312, Florida Administrative Code. Furthermore, I conclude in subsequent rulings in this Final Order that the location of the two proposed wells as previously permitted by the Water District, is not at issue in this proceeding. Thus, the location of the two proposed wells relative to an alleged FEMA V-zone does not appear to be relevant to the critical issue on this case of whether the Utility has provided reasonable assurances that its proposed expansion of the treatment capacity of its existing water plant will not violate applicable water quality standards.

Even assuming, arguendo, that the existence of a FEMA V-zone was relevant to the Utility's application at issue here, the record reflects that the Respondents are correct in their conclusion that the uncontroverted evidence in this case establishes that the Utility's existing water plant facility is not located in a FEMA V-zone. This is acknowledged by the Hearing Officer in Finding of Fact 20. In fact, the uncontroverted evidence shows that the existing water plant structures are Located in a "A-17" zone, which is less vulnerable to Gulf storm surge than a "V-zone". (Tr. Vol. II., 80; Utility Ex.

1. I also agree with the Respondents' observation that the record evidence would not seem to support a permissible inference that the location of the two proposed wells would be in a FEMA V-Zone due to the potential of a storm surge from the Gulf, since it is undisputed that the proposed well locations are eastward of and farther away from the Gulf than the existing water plant. (Utility Ex. 16)

   
   

   In view of the above, I conclude that the location of the proposed new wells by the Utility relative to a FEMA V-zone is not a factor within the purview of the applicable permitting rules for location of public water wells and that the location of the wells is not at issue in this case. I also determine that there is no competent substantial evidence of record to support a finding by the Hearing Officer that the location of the two proposed wells would be in a FEMA V-zone, even if this FEMA criteria was applicable to the subject permit proceeding.

   
   

   Accordingly, Respondents' Exceptions II. and III. are granted. Exception

   IV.

   
   

   This exception of Respondents objects to the findings in the first sentence

   of Finding of Fact 28 wherein the Hearing Officer asserts that:

   
   

   The two deficiencies in Applicant's proof relate solely to the susceptibility of the proposed wells to a significant risk of damage from flooding and other disasters and the location of the proposed wells relative to areas least subject to localized flooding.

   
   

   The Respondents argue that these findings are improper due to:

   
   

   1. The delegation from the Department to the Water District of the permitting of construction of public water wells.

      
      

   2. Lack of competent substantial evidence of risk of damage to the wells.

      
      

   3. Improper shifting of burden of proof.

The issue of delegation to the Water District of the duty and authority for the permitting of construction of public water wells is disposed of in the succeeding consolidated rulings on Respondents' exceptions V. through XII. I am of the view that grounds (2) and (3) above are meritorious for the following reasons.

The Hearing Officer's unchallenged findings establish that the Utility's existing water plant on Don Pedro Island is well-constructed, exceeds minimum construction and operating requirements, and has been operated since the 1980's in "an exemplary fashion". (Findings of Fact 3, 21, 22, 24, and 25) The Hearing Officer's findings also acknowledge that the reverse osmosis filtration technology currently utilized at the water plant and proposed to be expanded in capacity in this permit proceeding "is one of the most effective at eliminating contaminants from drinking water." (Finding of Fact 22) The Hearing Officer further finds that the subject Application "proposes no material changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment." (Finding of Fact 5)

A review of the transcript of testimony reflects that the Utility presented the testimony of Pedro Mora, the licensed professional engineer who prepared the subject Application for the Utility. Mr. Mora testified that the Application complied with the Department rules and standards for the issuance of the permit to expand the treatment capacity of the existing water plant. (Tr. Vol. I, 89-

1. Mr. Mora's testimony was corroborated by the expert testimony of two Department permit review specialists who were involved in the review of the Utility's Application. 5/ James Oni and Gary Maier both testified that, in their opinion, the Utility's proposed project complied with all Department rules and standards applicable to expansion of the drinking water system at the plant on Don Pedro Island. (Tr. Vol. I, 137-138; 191-193)

   
   

   Petitioners did not come forward with any expert witnesses at the DOAH hearing to controvert the prior expert testimony presented in favor of the Utility's permit request. 6/ Furthermore, the record reflects that Petitioners failed to present any expert or lay testimony of prior contamination of the water treated at the Utility's water plant due to flooding conditions since commencement of operation in the 1980's. Thus, I conclude that the challenged findings of the Hearing Officer in the first sentence of Finding Of Fact 28 are based on an erroneous interpretation of the Department rules and are not based on competent substantial evidence of record.

   
   

   In view of the above and the conclusions in the following ruling, Respondents' Exception IV. is granted

   
   

   Exceptions V. through XII.

   
   

   These exceptions of the Respondents take issue with various legal conclusions and rule interpretations of the Hearing Officer in Conclusions of Law 38, 39, 43, 44, 47, 48, 51, 55, 56, and 66. The Respondents also take exception to the Hearing Officer's ultimate recommendation that the Department enter a Final Order denying the Utility's application for expansion of the capacity of its existing water treatment plant. The challenged legal conclusions, rule interpretations, and recommendation of the Hearing Officer all deal essentially with the same basic issue of the extent of the Department's delegation to the Water District of responsibility for the permitting of public water wells.

   The Utility and the Department have consistently maintained the position before the Hearing Officer and in these exceptions that the Department has delegated to the Water District final authority and total responsibility to issue permits for the location, construction, repair, and abandonment of public water wells. It is undisputed that the Water District issued the two water well permits to the Utility on February 8, 1995. Thus, these water well permits were issued by the Water District prior to the commencement of this administrative proceeding and even prior to the time that the Department issued its notice of intent to issue the subject water treatment system expansion permit.

   
   

   In the challenged Conclusions of Law identified above, the Hearing Officer goes through a process of construing, in para materia, various rules of the Department to support his interpretations and legal conclusions that the Department has at least retained concurrent jurisdiction over the permitting of public water wells. The Respondents contend in their exceptions that these rule interpretations and resulting legal conclusions of the Hearing officer arc erroneous and should be rejected. I concur with these exceptions of the Respondents for the following reasons:

   
   

   1. The controlling provisions of Section 373.308, Florida Statutes, impose a mandatory duty on the Department to delegate to the various water management districts the authority to implement programs for the issuance of permits for the location, construction, repair, and abandonment of water wells. Respondents correctly observe in their exceptions that prior to the year 1983, the statutory language in this delegation statute was permissive rather than mandatory. See Section 373.308, Florida Statutes (1981). The 1983 statutory change inserting the critical term "shall" for the prior permissive term "may" seems to evidence the clear intent of the Legislature to ensure that the permitting of public water wells would thereafter be handled on a regional basis by the five water management districts. This statutory mandate to delegate the permitting of public water wells to the water management districts was carried out by the Department through the adoption of implementing agency rules. See, e.g., Rule 62-555.510, Florida Administrative Code. 7/

      
      

   2. The Department's public water treatment specialists James Oni and Gary Maier both testified at the DOAH formal hearing that the Department does not currently have anything to do with the issuance of water well permits and that such permits are issued by the water management districts. (Tr. Vol. 1, 140, 198-199; Vol. III, 93). Both Mr. Oni and Mr. Maier were accepted by the Hearing Officer in this case as experts in applying Department rules to drinking water treatment plants. (Tr. Vol. 1, 133-135, 191). A review of the record does not indicate the presence of any other competent substantial evidence to the contrary.

      
      

   3. The case law of Florida holds that great deference should be accorded to administrative interpretations of statutes and rules that the agency is required to enforce, and such administrative interpretations should not be overturned unless clearly erroneous. See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dept. of Env. Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991); Reedy Creek Improvement Dist. v. Dept. of Env. Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986). I conclude that this interpretations by Mr. Oni and Mr. Maier of no current Department responsibility for the issuance of public water well permits are not clearly erroneous. Rather, these interpretations appear to be entirely consistent with the controlling provisions of Section 373.308, Florida Statutes, and the Department's related rules dealing with delegation of water well permitting to the water management districts.

   4. The only apparent source for the proposition that the Department has retained concurrent jurisdiction with the water management district for permitting public water wells is the Hearing Officer's personal interpretations of the statutory and rule provisions quoted from his Recommended Order. 8/ At the administrative review level the agency head is free to exercise his or her judgment and reject erroneous conclusions of law or rule interpretations of a hearing officer. See, e.g., Section 120.57(1)(b)10, Florida Statutes; MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982). I conclude that these challenged rule interpretations and related conclusions of law of the Hearing Officer are erroneous and must be rejected.

Based on the above, Respondents' Exceptions V., VI., VII., VIII., IX., X., XI., and XII. are granted.

Conclusion

I share the Hearing Officer's concern with the fact that the Petitioners apparently did not receive actual notice of the Utility's pending water well applications prior to the permits being issued by the Water District in February of 1995. I would note that the record does not contain any testimony or other evidence that any of the Petitioners in this case actually filed a written request with the Water District to receive a copy of any pending applications affecting Don Pedro Island as seemingly authorized by the Water District's rules. See, Rule 40D-1.603(4), Florida Administrative Code. In any event, I am not aware of any precedent for the Department having the legal authority to deny a water treatment system modification permit to an applicant because a permit challenger did not have actual knowledge of a related water well permit application having been filed with a water management district prior to its issuance of the permit. I am also not aware of any legal authority for the Department to reverse or modify the actions of a water management district in issuing water well permits eight months prior, particularly in a formal administrative proceeding in which the water management district is not even a party.

It is therefore ORDERED:

1. The findings in paragraph 20 of the Recommended Order are modified by deleting therefrom the second sentence.

   
   

2. The findings in paragraph 23 of the Recommended Order are rejected in their entirety.

   
   

3. The findings in paragraph 28 of the Recommended Order are modified by deleting therefrom the first sentence.

   
   

4. Conclusions of Law 38, 39, and 43 of the Recommended Order are rejected their its entirety.

   
   

5. Conclusion of Law 44 of the Recommended Order is modified by deleting therefrom the last sentence.

   
   

6. Conclusion of Law 47 of the Recommended Order is modified by deleting therefrom the first sentence.

7. Conclusions of Law 48, 51, 55, 56, and 65 of the Recommended Order are rejected in their entirety.

   
   

8. Conclusion of Law 66 of the Recommended Order is modified by deleting therefrom the first sentence.

   
   

9. The Recommendation of the Hearing Officer on pages 22-23 of the Recommended Order is rejected in its entirety.

   
   

10. All of the Hearing Officer's remaining findings of fact and conclusions of law not expressly modified or rejected in paragraphs A through I above are adopted and incorporated herein by reference.

    
    

11. The Department's South District Office is directed to ISSUE to the applicant Bocilla Utilities, Inc., permit number 5084079 for expansion of its existing water treatment plant on Don Pedro Island, subject to the conditions set forth in the Notice of Intent to Issue.

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, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; 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 9th day of October, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT

FILED, ON THIS DATE PURSUANT TO S. 120.52 FLORIDA STATUES WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH

IS HEREBY ACKNOWLEDGED.

B. Reader. 10/09/95

DEPUTY CLERK DATE

ENDNOTES

1/ The term "Department" in this Final Order will include the former Department of Environmental Regulation, a predecessor agency of the present Department of Environmental Protection.

2/ The Utility and the Department will sometimes be referred to collectively as the "Respondents".

3/ The Utility initially proposed locating the plant on the mainland and conveying water through submerged pipes to Don Pedro Island. This proposal was approved by the Army Corps of Engineers and the former Department of Environmental Regulation, but the Trustees of the Internal Improvement Trust Fund denied the Utility's request for an easement across sovereign submerged lands. After failing to obtain a sovereign submerged land easement, the Utility obtained permits to build a reverse-osmosis (RO) water plant at its present location on the barrier island. Included among the permits was a permit from the Department of Natural Resources dated September 11, 1985, allowing the Utility to construct the water treatment plant and two underground concrete water storage tanks up to 100 feet seaward of the coastal construction control line.

4/ A "FEMA V-zone" is a term whose source is derived from the provisions of the National Flood Insurance Program. In 44 CFR 59.1, a "FEMA V-zone" is indirectly defined as a coastal "area of specific flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources."

5/ James Oni is a licensed professional engineer in this state who holds the title of Professional Engineer II with the Department. (Tr. Vol. 1. 132) Mr. Oni's supervisor Gary Maier is also a Florida licensed professional engineer who holds the title of Professional Engineer III with the Department. (Tr. Vol. 1, 190). Both Mr. Oni and Mr. Maier were accepted by the Hearing Officer as experts in the operation of drinking water treatment plants and in applying Department rules relating to drinking water treatment plants. (Tr. Vol. 1, 133- 135, 191)

6/ In the landmark case of Florida Dept. of Transportation v. J.W.C. Co., Inc.,

396 So.2d 778 (Fla. 1st DCA 1981), the court wrote a seminal opinion dealing with the respective evidentiary burdens of the permit applicant and permit challenger in a formal administrative hearing. The court concluded that once the permit applicant has presented its evidence and has made a preliminary showing of "reasonable assurances" that applicable Department standards will not be violated, then the burden shifts to the permit challenger to go forward with evidence to prove that the applicant is not entitled to the permit. Id. 789. The court also observed that the permit challenger must present "contrary evidence of equivalent quality" to that presented by the permit applicant. Id. 789. It is evident that the Petitioners in this case failed to go forward with the presentation of controverting evidence of equivalent quality to that presented by the Respondents' experts in favor of the permit.

7/ The Department retained jurisdiction to establish minimum standards for the location, construction, repair, and abandonment of water wells throughout the state as authorized by Section 373.308(4), Florida Statutes. These Department minimum standards for water wells are currently set forth in Chapters 62-524,

62-531, 62-532 and 62-555, F.A.C. The Water District has expressly incorporated these Department minimum water well standards into its own rules. See Rule 40D- 3.037(1), F.A.C.

8/ The Hearing Officer suggests in Conclusion of Law 65 that the location of the two proposed water wells is at issue in this case because they are part of the "plant site" as referred to in Department Rule 62-555.310, F.A.C. This conclusion of the Hearing Officer is not compelling. The Hearing Officer's unchallenged Finding of Fact 17 establishes that the proposed locations of the two wells would be 200 and 450 feet respectively from the water treatment tanks. The remoteness of the proposed water wells from the existing water plant structure does not seem to support the Hearing Officer's conclusion. Also, the viability of this conclusion is further undermined by the fact the Department standards for location of the "plant site" and for location of public drinking water wells are set forth in two separate rules. See, Rule 62-555.310 and 62- 55-312, F.A.C.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail to:

Robert Starr

Post Office Box 5337

Grove City, Florida 34224

Betty Brenneman Post Office Box 67

Placida, Florida 33946

M. Christopher Bruant OERTEL HOFFMAN

Post Office Box 6507 Tallahassee, Florida 32314-6507

and by hand delivery to:

Thomas I. Mayton, Jr. Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Ann Cole, Clerk and

Robert E. Meale, Hearing Officer DIVISION OF ADMINISTRATIVE HEARINGS

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32300-1550

Jim Duff

Post Office Box 41 Placida, Florida 33946

this 10th day of October, 1995.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000 Telephone: 904/488-9314

Docket for Case No: 95-001577

Orders for Case No: 95-001577