STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NORTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Petitioner, )
)
vs. ) Case No. 05-0859
)
FRANK MARCOTTE, )
)
Respondent. )
______________________________)
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on August 2, 2005, in Crestview, Florida.
APPEARANCES
For Petitioner: Kevin X. Crowley, Esquire
Pennington, Moore, Wilkinson, Bell & Dunlop, P.A.
Post Office Box 10095 Tallahassee, Florida 32302-2095
For Respondent: D. Michael Chesser, Esquire
Chesser & Barr, P.A. 1201 Eglin Parkway
Shalimar, Florida 32579-4211 STATEMENT OF THE ISSUE
The issue is whether Respondent should take corrective action by opening and removing a drain gate and dewatering an impoundment known as Lake Susan in Okaloosa County, Florida.
PRELIMINARY STATEMENT
On January 31, 2005, Petitioner, Northwest Florida Water Management District (District), filed an Administrative Complaint/Notice of Violation and Order (Administrative Complaint) under Section 373.119, Florida Statutes (2004),1 which charged that Respondent, Frank Marcotte, who resides in Crestview, Okaloosa County (County), Florida, had failed to open a drain gate so that impounded water in Lake Susan could be drained, and had failed to obtain a permit to maintain an impoundment, as required by Section 373.413, Florida Statutes, and Florida Administrative Code Rule 40A-4.041. The Administrative Complaint directs Respondent to take corrective action by opening (and removing) a drain gate and dewatering the impoundment. (As explained in greater detail in the Findings of Fact, after the impoundment is drained, the replacement of a portion of the drain pipe which runs under an adjoining dam will be required before the District will allow a new impoundment. These repairs, however, are not directly addressed in the Administrative Complaint, nor are they identified as part of the corrective action.)
On February 18, 2005, Respondent filed a Petition for
Administrative Hearing for the purpose of contesting the charges. Among other things, he asserted that part of the drain pipe under the dam and through which the water exits the
impoundment is located on public property owned and maintained by the County and that the County is responsible for making any repairs to that portion of the pipe. The matter was referred to the Division of Administrative Hearings on March 8, 2005, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated March 23, 2005, a final hearing was scheduled on May 16, 2005, in Shalimar, Florida. At Petitioner's request, the final hearing was rescheduled to August 2, 2005, in Crestview, Florida.
On June 24, 2005, the District filed an Immediate Final Order (IFO) stating that because of the present condition of the dam, the integrity of Old Bethel Road (for which the dam serves as a road crossing) is in jeopardy and this condition constitutes an emergency. The IFO requires Respondent to begin dewatering within twenty-four hours and complete the dewatering and removal of the drain gate within seven days. The IFO has been appealed by Respondent to the First District Court of Appeal. See Frank Marcotte v. Northwest Florida Water Management District, Case No. 1D05-3569. The parties agree that the IFO is not in issue here.
On July 29, 2005, Respondent filed a Motion to Add Party and Motion for Continuance. Both Motions were denied by Order dated August 1, 2005.
At the final hearing, the District presented the testimony of Lance Laird, a professional engineer, chief of the District's Bureau of Surface Water Regulation, and accepted as an expert, and Jerry Sheppard, a field representative at the District's Pensacola office. Also, it offered Petitioner's Exhibits 1A and B and 2-39, which were received in evidence. Respondent testified on his own behalf and presented the testimony of Albert Holzschuh, the County's Risk Management Director; John W. Herndel, a dam construction contractor; and Charles Dunn, a professional engineer and consultant. Also, he offered Respondent's Exhibits 1A and B, 2A-C, and 3, which were received in evidence. The parties also offered Joint Exhibit 1, which was received in evidence.
A Transcript of the hearing was filed on August 23, 2005.
Proposed findings of fact and conclusions of law were due no later than September 2, 2005, and the same were timely filed by Petitioner. On September 7, 2005, Respondent submitted his Proposed Recommended Order. Because Petitioner has not objected to the timeliness of the filing, both filings have been considered in the preparation of this Recommended Order.
On September 7, 2005, Respondent filed a Motion to Take Additional Evidence After Administrative Hearing and Before Order (Motion). By his Motion, Respondent seeks to have received in evidence a copy of a letter from the County dated
August 25, 2005, which summarizes the findings of the County's inspection of the drain pipe made after the final hearing. On September 12, 2005, Petitioner filed a response in opposition to the Motion. Because the contents of the letter are not dispositive of the issues in this case, but rather involve collateral matters and are not prejudicial to Petitioner, the Motion is granted, and the letter has been considered in Finding of Fact 42.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
a. Background
On an undisclosed date, but at least several decades ago, a series of recreational earth dams and impoundments were built by a Mr. Kennedy, who developed an area now known as the Kennedy Lake Subdivision (Subdivision), which lies around five miles northwest of downtown Crestview. The small lakes created by the dams are known as the Kennedy Lake Chain, one of which is Lake Susan, which lies on Respondent's property. At least three or four of the upper lakes drain into Lake Susan through a series of large outflow pipes, which have been authorized by the District.
The level of Lake Susan is regulated by a drain gate.
The drain gate allows water to flow from Lake Susan through an
approximate 100-foot drain pipe underlying a dam and roadway into another lake and wetlands area. The evidence shows that the dam which impounds Lake Susan is more than ten feet but less than twenty-five feet in height. See Petitioner's Exhibit 33. Thus, any work or alterations to the dam and impoundment are subject to the District's jurisdiction. See Fla. Admin. Code R. 40A-4.041(1)(a).
According to Mr. Marcotte, the original drain pipe, or barrel, under the roadway was first installed by the County around 1939. The dam and impoundment were apparently built many years later when the Subdivision was developed. Because the evidence shows that barrels generally have a life of twenty years or so at most, it is likely that the pipe has been replaced at least one time since 1939, most likely when the dam was built.
A small portion of the drain pipe under the dam (around thirty feet in length) is situated on Respondent's property while the remainder is located on County right-of- way. The parties agree that Respondent has the responsibility for maintaining the impoundment. (Documents submitted into evidence also suggest that the Lake Susan Homeowner's Association (Association), of whom Respondent is apparently a member, assumed this responsibility at one time.) Finally, at least a part of the dam which impounds the water is located on
Respondent's property.
A two-lane paved road known as Old Bethel Road runs over the crest of the dam and serves as an important connector road between State Highway 85 and U.S. Highway 90 just west of Crestview. On either February 22, 1973 or 1978, Associated Developers of Florida, Inc., whose relationship to Mr. Kennedy, if any, is unknown, quit-claimed its interest in the road to the County. See Respondent's Exhibit 3. (Because the copy of the deed provided by Respondent is partially illegible, there is some
confusion over the exact date.) Since that time, the County has owned and maintained Old Bethel Road.
Despite the quit claim deed, for several years after this dispute first arose in 1999 or 2000, the County denied responsibility for maintaining anything except the actual roadway above the dam. Thus, it denied responsibility for repairing the 70-foot portion of the drain pipe which lies on its right-of-way. At the hearing, however, a County representative acknowledged that it has the responsibility to maintain and repair that portion of the drain pipe which runs underneath the dam and lies in the County right-of-way.
In 1996, Respondent, who is an engineer and professional helicopter pilot, purchased a residence on Lake Susan located at 1033 Tallokas Road (Section 1, Township 3 North, Range 24 West), Crestview. Tallokas Road is a local road which runs in a northeastern direction from Old Bethel Road (starting approximately 1.1 miles north of U.S. Highway
90) into the Subdivision. Lake Susan lies just north of the intersection of, and between, Tallokas Road and Old Bethel Road; Respondent's property faces Lake Susan to the southwest.
In 1998, the Association performed certain repair work on the dam (apparently without authorization from the District), but Hurricane Georges struck the Florida Panhandle later that year causing at least three of the dams in the
Kennedy Lake Chain to fail. When the upper dams failed, trees from those impoundments were swept into the deepest part of Lake Susan "knocking [the] standpipe off of its base." Except for a "rusted pipe," however, the dam did not otherwise fail.
On August 5, 1999, Respondent (on behalf of himself and the Association), through his engineer, Mr. Dunn, filed an application with the District to perform certain repairs and alterations on the dam caused by Hurricane Georges. In the application, Mr. Dunn recited that Respondent would be responsible for all maintenance of the dam and associated appurtenances.
On December 1, 1999, the District issued Surface Water Management Permit No. 4-99-021 (Permit) to the "Lake Susan Homeowners Association c/o Francis Marcotte" for the "Repair of Non-Agricultural Impoundment." The Permit provided that all construction should be completed by November 30, 2002. Under District protocol, once the construction work is successfully completed and approved, the District issues an Operation and Maintenance letter (O & M letter), which allows the permittee to impound water. Until an O & M letter is issued, however, a permittee cannot legally impound water.
The District is authorized by rule to "to impose on any permit granted . . . such reasonable conditions as are necessary to assure that the permitted [activity] will be
consistent with the overall objective of the District." Fla. Admin. Code R. 40A-4.041(3). Pursuant to this authority, the District imposed eighteen conditions in the Permit, two of which are described below.
First, Condition No. 11 of the Permit required that the old spillway system in the dam be excavated and replaced unless the old piping system was determined to be serviceable. It also required that "[i]f the old piping system is determined to be serviceable, the District shall be notified by the project engineer." The District interprets this provision to mean that after the work authorized under the Permit has been completed, the project engineer (Mr. Dunn) must provide the District with a statement as to whether or not the entire piping system under the dam is serviceable.
Mr. Dunn, however, construed the provision as only requiring him to certify that portion of the pipe which he found to be serviceable; no other statement was required. The District's interpretation is reasonable and is hereby accepted.
Next, Condition No. 15 states that the authorized facility will not be considered complete until an As-Built Certification and Completion Report is filed by the project engineer, and the District determines that the project is in accordance with the approved design and any permit conditions stipulated in the construction authorization. The District
interprets this provision to mean that unless all portions of the drain pipe which are not serviceable are replaced, including that portion which lies within the County right-of- way, the project will not be considered complete and no impoundment of waters will be allowed. This construction of the provision is a reasonable one and has been accepted. (The District has not involved itself in the dispute between Respondent and the County over who has the responsibility for replacing that portion of the pipe which lies in the County's right-of-way.)
As required by Condition No. 5, on June 28, 2000, a pre-construction meeting was held. The meeting was attended by a County engineer, Respondent's wife, Mr. Dunn, the project contractor (B & H Moving Contractors, Inc.), and District personnel, including Mr. Laird, a District engineer. The discussions that occurred at the meeting are memorialized in a memorandum drafted by Mr. Dunn. See Petitioner's Exhibit 7.
During preliminary excavation work performed by B & H Moving Contractors, Inc., it uncovered that portion of the outlet (drain) pipe lying on Respondent's property and found "two holes . . . in the second joint from the old riser" caused by corrosion. Based on this observation, which was disclosed at the pre-construction meeting, Mr. Dunn noted in his memorandum that the "entire pipe may have problems that
could result in undermining Old Bethel Road." At the meeting, however, the County declined to agree that it would repair that portion of the pipe on its right-of-way until it could be established "that the pipe under the road was the responsibility of the County."
On September 20, 2000, Mr. Laird received a telephone call from Respondent who said that the County had refused to replace the pipe and the parties were at an impasse. Respondent also told Mr. Laird that until the pipe was replaced, he would not shut the gate. Mr. Laird advised Respondent not to allow Lake Susan "to stage up" until the pipe was replaced. A summary of the telephone conversation is found in Petitioner's Exhibit 10, which was prepared by Mr. Laird immediately after the call.
On September 26, 2000, Mr. Dunn advised Respondent by letter that B and H Moving Contractors, Inc. had completed the work on the dam in accordance with the plans and specifications. This included replacement of the drain pipe which lay on Respondent's property. The letter confirmed Mr. Dunn's understanding that Respondent had agreed to "not close the gate until Okaloosa County completes the replacement of their pipe under Old Bethel Road." See Petitioner's Exhibit 11.
Over the following months, Respondent engaged in
negotiations with the County in an effort to get the County to assume responsibility for its pipe. On August 17, 2000, the County advised Respondent that it would not replace the pipe. However, its engineer agreed to recommend to the Board of County Commissioners that the County would "cover the material cost of the pipe and the installation of the base and paving of the roadway." The actual work, however, would be performed by Respondent "[s]ince Lake Susan is a private lake and the pipe is part of the control structure for the lake." See Petitioner's Exhibit 12. Respondent was understandably reluctant to perform any work on County property since that would expose him to liability if a subsequent unforeseen event should occur.
Although the work was probably completed much earlier, Mr. Dunn filed an "As-Built Certification and Completion Report by Project Engineer (Report) on April 1, 2002, as required by Condition No. 15. See Petitioner's Exhibit 13. That Report indicated as follows:
The project was constructed in substantial conformance with the plans and specifications prepared by me. All hydraulic, structural, and environmental considerations appear to have been adequately addressed. The County still has not replaced their pipe under Old Bethel Road. The permittee has completed all work permitted to be done by him and, in my opinion, the project is completed.
As noted above, Condition No. 11 required that "[i]f the old piping system is serviceable, the District shall be notified by the project engineer." According to Mr. Dunn, he did not include a certification on the County's drain pipe because he "highly suspected" that the drain pipe lying within the County right-of-way was unserviceable and in the same condition as the pipe found on Respondent's property. Therefore, he limited his certification to the thirty feet of pipe that was replaced.
After the Report was filed, a lengthy series of correspondence between the parties ensued. On April 5, 2002, Mr. Laird wrote Respondent acknowledging receipt of the project engineer's Report. He stated that he was not in agreement with Mr. Dunn's certification that the project was complete because the parties had previously concluded at the pre-construction meeting that the entire pipe was unserviceable. He advised Respondent that the "impoundment must be dewatered and maintained in a dewatered condition until such time as this issue is resolved." See Petitioner's Exhibit 14. As a consequence, an O & M letter was never issued by the District.
On May 7, 2002, Respondent responded to Mr. Laird's letter and stated that he was "continuing . . . to lower the lake to that of the adjoining one." He also stated that
because he had done everything required under his Permit, he hoped that the matter would be considered complete. See Petitioner's Exhibit 15.
On May 15, 2002, Mr. Laird responded to the above letter and reiterated that given the questionable condition of the pipe (which lay on County right-of-way), pursuant to Condition 15 the repairs to the impoundment would not be considered complete and the impoundment of water would not be authorized until the entire pipe had been replaced. He requested that Respondent "maintain the water in the lake at a lower level until such time as this issue is resolved." Finally, he reminded Respondent that the District's position on the on-going dispute with the County was that it did not matter who replaced the pipe, so long as it was "replaced and done in a legal manner." See Petitioner's Exhibit 16.
By letter dated August 9, 2002, a District regulatory administrator, Mr. Morgan, advised Respondent that District staff had observed that Lake Susan was once again impounding water and that he must notify the District within fourteen days that the impoundment has been dewatered, together with his plans for the replacement of the pipe under Old Bethel Road. See Petitioner's Exhibit 17.
On August 26, 2002, Respondent answered the above
letter and advised in part that the outlet valve had been stolen by vandals which caused the lake to fill up but that "the valve is now open and the water level is falling." He also asked that his current permit be extended until the County agreed to perform the work. See Petitioner's Exhibit 18.
In response to this request, by letter dated September 3, 2002, the District extended the deadline for completion of the project until March 1, 2003. See Petitioner's Exhibit 19.
On November 21, 2002, Mr. Morgan again advised Respondent by letter that the District staff had observed that Lake Susan remained "at or near normal pool." The letter went on to say that while the District recognized Respondent's "difficulties in resolving [the issue with the County]," he was not allowed to impound water until the matter was resolved. See Petitioner's Exhibit 20.
On March 3, 2003, a District field representative, Jerry Sheppard, met with Respondent concerning the level of water in the impoundment. He memorialized the conversation in a memorandum prepared the same date. See Petitioner's Exhibit
According to the memorandum, the pond was "full due to excessive rains," and even though the gate was open, it had
only "partial flow through the outlet pipe but [was] not opened adequately to pass storm water accumulated in the upper pond." The memorandum further stated that Respondent had assured him that "he will open the gate an additional round or two to allow further dewatering to take place while he is away on his job for the next two weeks." At the end of the meeting, Mr. Sheppard "strongly urged that the pond remain dewatered."
On March 12, 2003, Mr. Laird advised Respondent by letter that his Permit had expired on March 1, 2003. This meant that Respondent could not undertake any work on the facility without District approval and that he must maintain the facility in a dewatered condition. See Petitioner's Exhibit 22.
On January 21, 2004, Mr. Morgan sent Respondent a letter advising that the District staff had observed "that Lake Susan was once again impounding water to within 1.5 inches of the designed water level." He added that "the facility must be completely dewatered, and maintained dewatered, until such time as the issue has been resolved." The letter warned that if Lake Susan was not dewatered, a formal enforcement action would be initiated. Finally, the letter requested that Respondent contact the District within fourteen days "noticing [the District] that the impoundment
has been dewatered and [that Respondent] plan[ned] to replace the old pipe under Old Bethel Road, or [Respondent] will remove the head gate from the riser base." See Petitioner's Exhibit 23.
On March 3, 2004, Respondent, Mr. Laird, and various County representatives met in Crestview in an effort to resolve the issue of who would replace the remaining portion of the drain pipe. The discussions at the meeting are recorded by Mr. Laird in a memorandum dated March 4, 2004. See Petitioner's Exhibit 24. The memorandum states in part that "all [participants] agreed that the pipe is not serviceable as a spillway pipe." At the meeting, the County refused to accept responsibility for fixing the drain pipe. Its Public Works Director (Director) also stated that even if a quit claim deed showed that the pipe was on their right-of- way, the County would not repair the pipe; instead, the Director asserted that the County would prevent Respondent from impounding water. Finally, contingent upon the Board of County Commissioners approving her recommendation, the Director agreed to purchase the seventy feet of pipe if Respondent would perform all excavation work and install the pipe at his own expense. See Petitioner's Exhibit 24.
By letter dated March 5, 2004, the Director
confirmed in writing her previous offer to Respondent that she
would request authorization from the County to purchase seventy feet of pipe, reconstruct Old Bethel Road after the pipe was replaced, and close the road during the construction process. However, the Director expected Respondent to provide all other necessary material and work effort associated with the pipe replacement. See Petitioner's Exhibit 25. On March 8, 2005, Respondent agreed to accept the County's offer. See Petitioner's Exhibit 26.
Presumably based on this understanding, on March 8, 2004, Mr. Morgan advised Respondent that he would "allow up to
90 days for [Respondent] to be able to make the necessary replacement." This was followed by a letter from Mr. Laird on April 12, 2004, requesting that Respondent provide a proposed work schedule so that the District could generate an order extending the time for the work to be completed. See Petitioner's Exhibit 27.
On April 27, 2004, Respondent (who was off-shore in the Gulf of Mexico on flight duty) sent a "rapid memo" to Mr. Laird advising that he had just received a verbal bid offer and would forward a work schedule as soon as a formal contract was signed. See Petitioner's Exhibit 29. He also sent Mr. Laird a memorandum on this subject on May 13, 2004, but that document was not made a part of this record.
By letter dated May 19, 2005, Mr. Laird answered
Respondent's two memoranda and indicated that two technical issues needed to be resolved. He also enclosed for Respondent's review a copy of a draft permit which authorized the work to be performed. See Petitioner's Exhibit 30.
Sometime during this time period, and perhaps after he received the bid, Respondent decided that he would not assume the responsibility (and liability) for working on County property and offered instead to pay the County for one- half of the project's cost (which totaled around $25,000.00) so long as the County would do the work. Apparently, the County refused this offer, and the project was never undertaken.
On August 12, 2004, a District administrator (Norman Velazquez) advised Respondent's counsel by letter and facsimile that District staff had inspected Lake Susan that morning and observed that "the impoundment was operating at full capacity contrary to previous District communications ordering the dewatering of it." The letter noted that the matter had been discussed by telephone the same day and that counsel had agreed that the information in the letter would be shared with Respondent in a timely manner. See Petitioner's Exhibit 31.
By letter dated September 13, 2004, Mr. Velezquez again advised Respondent's counsel that a follow-up inspection
that day revealed that "the impoundment was operating at full capacity." The letter also stated that Respondent "is required to dewater the unauthorized impoundment of water by Monday, September 21, 2004." Finally, Respondent was warned that if he did not dewater Lake Susan, it would "leave [the District] no choice but to issue an Administrative Complaint Order against Mr. Marcotte." See Petitioner's Exhibit 32.
On February 1, 2005, the District issued its Administrative Complaint.
Between April 2003 and December 2004, a District field representative (Mr. Sheppard) visited the site on a number of occasions. On each occasion, he observed that the impoundment was full and that dewatering had not occurred.
In July 2005, the County reversed its position and agreed that it had the responsibility to replace the pipe if it was not serviceable. The County also agreed to hire a vendor who would place a special video camera in the pipe to detect any holes, rust, or other deterioration. The County further agreed that if defects were found, it would replace the pipe at its own expense. This was confirmed at hearing by the County's Risk Management Director.
On August 25, 2005, the County advised Respondent by letter that the inspection had taken place, that the County was working on a solution and probably intended to "insert a
sleeve inside the existing pipe" to correct the problem, and that the project had been assigned to the Public Works Director with "a high priority." The current status of the project is unknown.
Although Respondent argues in his Proposed Recommended Order that the District has never established that the County's portion of the drain pipe is unserviceable, the greater weight of evidence shows the opposite to be true. Indeed, all of the experts who testified at hearing agreed that the drain pipe should be replaced due to its age and the defects observed when the dam was excavated and a portion of the pipe exposed for inspection in 2000. In addition, a part of the earthen dam is saturated with moisture, and voids have developed in the interior of the structure. Collectively, these conditions have led the District to properly conclude that the impoundment of the water constitutes a danger to the public since Old Bethel Road might collapse at any time. Because of this, no impoundment of waters should occur until the pipe is replaced.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Section 373.119(1), Florida Statutes, authorizes the
District's Executive Director to issue a written complaint upon an alleged violator whenever he "has reason to believe that a violation of any provision of this chapter or any regulation promulgated thereunder or permits or order issued pursuant thereto has occurred, is occurring, or is about to occur." Here, the Administrative Complaint alleges that Respondent has violated Section 373.413, Florida Statutes, and Florida Administrative Code Rule 40A-4.041.
Subsection (2) of the statute provides in relevant part that "[a] person proposing to construct or alter a[n] . .
. impoundment . . . shall apply to the governing board or department for a permit authorizing such construction or alteration." Subsection (1)(a) of the cited rule provides in part that a general permit is required by any person for work which "impounds or may impound water by utilizing a dam which is or will be at least 10 feet but less than 25 feet in height
. . . from the lowest elevation of the outside limit of the barrier to the maximum elevation of the barrier[.]"
Respondent has not disputed that the District has jurisdiction over the dam and impoundment.
Under the theory of this case, the District alleges that Respondent was issued a permit to conduct certain work on a dam and impoundment; that he failed to satisfactorily
complete the work (because the entire drain pipe was not replaced); that an O & M letter was never issued and the permit has now expired; and that Respondent has continued to unlawfully impound water without a permit, as required by Florida Administrative Code Rule 40A-4.041 and Section 373.413(2), Florida Statutes. Until the entire drain pipe is replaced and the dam can be certified as being safe to operate, the District is seeking an order requiring Respondent to take corrective action by removing the gate on the drain pipe and dewatering Lake Susan.
By a preponderance of the evidence, the District has established that Respondent is impounding water (Lake Susan) without a permit; that the drain pipe under Old Bethel Road (which lies within the County's right-of-way) is unserviceable and needs to be replaced; that the impoundment of water threatens the integrity of Old Bethel Road; and that the requested corrective action should be taken. In reaching this conclusion, the undersigned notes that Mr. Marcotte has been involved in a long, expensive, and frustrating dispute with the County in seeking to have the County replace the pipe. At the same time, the District has shown remarkable restraint by allowing Respondent a number of years to resolve his dispute with the County before issuing its administrative complaint.
Given the dangerous conditions in the dam, which constitute a potential danger to the public, further delay is not warranted. Finally, even though the County eventually changed its position in July 2005, and now says that it will make the necessary repairs, until they are completed and approved by the District, Respondent is legally obligated to dewater Lake Susan. Therefore, the requested corrective action is warranted.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Northwest Florida Water Management District enter a final order sustaining the charges in the
Administrative Complaint and mandating the following corrective action:
Within fifteen days from the date of the final order, Respondent shall begin dewatering the impoundment known as Lake Susan at the maximum rate considered safe by Respondent's engineer.
Within forty-five days from the effective date of the final order, Respondent shall have Lake Susan completely dewatered and shall completely remove the drain gate to ensure that the impoundment remains completely dewatered.
DONE AND ENTERED this 20th day of September, 2005, in Tallahassee, Leon County, Florida.
S
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2005.
ENDNOTE
1/ All future references are to Florida Statutes (2004).
COPIES FURNISHED:
Douglas E. Barr, Executive Director Northwest Florida Water Management District
81 Water Management Drive Havana, Florida 32333-4711
D. Michael Chesser, Esquire Chesser & Barr, P.A.
1201 Eglin Parkway
Shalimar, Florida 32579-4211
Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A. Post Office Box 10095
Tallahassee, Florida 32302-2095
Douglas L. Stowell, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A. Post Office Box 10095
Tallahassee, Florida 32302-2095
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 2005 | Agency Final Order | |
| Sep. 20, 2005 | Recommended Order | Because Respondent did not complete work on a dam project and was unlawfully impounding water without a permit, corrective action is required. |
