The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, by Application No. 7500025, applied for a consumptive-use permit for an average daily withdrawal of 138,000 gallons of water from one (1) well penetrating the Florida Acquifer. This is an existing use. Exhibits were entered without objection, as follows: Original application with attachments, marked "Exhibit 1". Proof of Publication, marked "Exhibit 2". There were no written objections. The witness for permittee, George Szell, Hydrologist, was questioned at length by the staff attorney on issues to be resolved under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated thereunder by the Southwest Florida Water Management District, and particularly Rule 16J-2.11, Conditions for a Consumptive-Use Permit. A typed transcript of the testimony has been examined and made a part of the record for this hearing. The witness for the Board, Mr. Szell, objected to the granting of the permit on the grounds that the water crop was exceeded by 3.24 percent. Upon request of the Hearing Officer, the parties agreed to consider their differences and file a joint stipulation enumerating conditions upon which the parties agree. A joint stipulation signed by both parties was filed with the Division is marked "Supplement to the Record" and made a part of this recommended order. Mr. Szell recommended that the permit be granted consistent with the conditions in six (6) above.
Findings Of Fact S. A. Williams Corporation (Williams) is a Florida corporation which has its principal place of business in Florida, has a net worth of less than two million dollars, has fewer than 25 employees, and was the prevailing party in the initial proceedings. Williams has operated a construction and demolition landfill in Hernando County since prior to the adoption of zoning ordinances by the county, and its use of the land for this purpose was grandfathered. Subsequently, William sought to comply with certain conditions established by the County for expanding the landfill site. These improvements necessitated construction of a basin to retain surface water. On April 6, 1993, William applied for a surface water drainage permit from the Southwest Water Management District. On June 16, 1993, the District gave notice of its intent to issue the surface water drainage permit to Williams. On May 26, 1993, while Williams' application was pending with the Water Management District, the County revoked the zoning of Williams to operate a construction and demolition landfill site. Williams sought and obtained an injunction against the County to prevent it from revoking its zoning, and the County appealed the Circuit Court's order enjoining the revocation of the zoning. The Hernando County Commission was advised by their attorney on May 10, 1993, that the County might desire to challenge the issuance of permits by the Water Management District or the Department of Environmental Regulation to Williams to prevent Williams from proceeding with its operation during the appeal of the injunction. At a meeting on June 24, 1993, before the County challenged issuance of the permit, the Water Management District staff advised the County Attorney and a member of the County Commission, who were attending the presentation in their official capacity, that there would be no adverse drainage impacts to any property owned by the County, its rights-of-way, or any property of any citizen of the county because the drainage would be retained on Williams' property by a close basin system large enough to retain surface water drainage on the property during a 100 year storm. Subsequent to this meeting and prior to filing its petition challenging issuance of the permit, the County did not bring to the attention of the Water Management District any concerns to be resolved between the District, Williams, and the County over adverse drainage impacts to County property or rights-of-way. 7 On June 30, 1993, Hernando County filed a petition in the original proceeding challenging the issuance by Southwest Water Management District to Williams of a surface water drainage permit. That petition alleged two grounds for standing: (1) that the County was substantially affected because of adverse impacts to county property and the rights-of-way to county roads, and (2) that the County had standing to challenge the issuance of the permit under its general police powers. The County Engineer was not asked by the County Attorney to review the drainage impacts of the surface water drainage permit prior to filing the challenge, and did not review the District's file until after his first deposition on October 22, 1993. After reviewing the information, to include a new survey of the berm contours, furnished to the Water Management District by Williams, the County Engineer determined that there were no adverse drainage impacts off site. The County Engineer's opinion that there were no adverse impacts to County property was known by the County Attorney prior to the formal hearing in Case Number 93-4212 on November 16, 1993. At the formal hearing on November 16, 1993, in Case Number 93-4212, Williams moved to dismiss the petition filed by Hernando County for lack of standing on the basis that the County was not substantially effected by the Water Management District's decision to issue a surface water drainage permit to Williams. The County receded from its allegation of damage to County property and rights-of-way at the commencement of the hearing, but asserted standing on the basis of its general police powers. The County specifically denied at the formal hearing acting in a representative capacity in the manner of an association in behalf of the county's citizens. After hearing the argument of counsel and being fully advised in the premises, the undersigned hearing officer recommended that the County's petition be dismissed. At the conclusion of the hearing, Williams moved for the award of attorney's fees and expenses from the County after argument on the motion to dismiss the County's petition. Thereafter, Williams filed a written motion for the award of attorney fees and expenses. The Hearing Officer retained jurisdiction to consider the Motion for Attorney Fees and Expenses when the recommended order was entered. The Water Management District adopted the Recommended Order in its Final Order dated December 20, 1993, and the County appealed the District's Final Order which was affirmed per curiam without opinion in Hernando County v. Southwest Florida Water Management District, 647 So. 2d 124, (Fla. 5th DCA 1994). The instant case was established to consider William's motion which is treated as a collateral fact finding proceeding. The style of the original case was retained to prevent confusion. An evidentiary hearing on the motion for attorney's fees was held on May 10, 1995 which revealed the following facts. During the work-up period prior to notice of intent to issue the permit, the county's engineer and environmental specialist did not raise issues regarding drainage, contours, wetlands, and wildlife. (Tx-220). Although the County Attorney and one of its commissioners had been advised by the District that there would be no impact to County property or rights-of-way, the County Engineer was not asked to investigate whether the drainage from the proposed project would remain on the site as stated in the application and as concluded by the staff of the Water Management District prior to the County challenging the issuance of the permit. (Tx-198,199) The County Engineer looked at the Water Management District's file on the issuance of the permit only after the County had filed its challenge. (Tx-209). The County Engineer had expressed concerns to the District staff about suspected changes in the topography on the site. (Tx-208). When the Water Management District was made aware of the County engineer's concerns, a new survey was conducted which resolved the County engineer's concerns about changes in topography on the site, and revealed that the tops of the berms were as high or higher than represented in the application. The results of this new survey was shared with County Engineer prior to the original hearing. (Tx-208,211-219). The County's environmental specialist did not review the complete file on the Williams' permit application until within two weeks of the original formal hearing, well after the challenge was filed. (Tx-161). The environmental specialist had no basis to question the validity of the number of acres of wetlands stated in the second permit. (Tx-176). The environmental specialist did not have any personal knowledge regarding the flora or fauna on the site because she had never been on the site, and her information was based solely on material provided to her by individuals living in the vicinity of the site. (Tx-176,180-181). She did not have authority to enter on the site because the County had no enforcement authority over endangered species. When the county's concerns about endangered species on the site were voiced, an on site inspection was conducted by the District. The District staff found no endangered species, or evidence of endangered species, or persons who had seen them on the site. The District staff's findings were shared with the County prior to the original hearing. (Tx-220.) Williams incurred attorney fees and expenses responding to the challenge of the County to issuance of the surface water drainage permit. The expenses incurred by Williams were primarily in response to the County's allegations of adverse impacts to County property. However, it is impossible to reasonably separate the expenses incurred by Williams responding to the allegations of off-site impacts from those related to standing based upon general police power. The County's assertion of general regulatory authority was primarily a legal argument which was addressed by the District's staff. Williams sought no fees for the appeal which was litigated principally by the District and County. By agreement of the parties the evidence on the amount of attorney fees and rate were submitted by affidavit without agreement regarding the facts asserted in the affidavits. The rate charged by counsel for Williams of $195/hour was a reasonable rate for the type of service provided in the geographic area in which it was provided considering the skill and experience of counsel. The number of hours billed through preparation of the post hearing briefs in the original formal hearing in this case, 160.25 hours, was not excessive given the number of depositions taken, the motions hearings which were held, and the legal and factual issues raised. The Williams' affidavits of attorney's fees and expenses are as follows: Attorney fees thru original hearing: $31,248.75 Estimate of costs related to preparation and service of Motion for Attorneys Fees and Expenses: $ 1,560.00 Teleconference charges on motion to compel: $ 127.73 Outside copying expense: $ 8.73 Expert Witness fee: $ 1,277.90 Court Reporter fees for depositions & transcripts: $ 1,692.45 Expert fees on Motion for Attorney Fee and expenses: $ 788.00 24. The attorney's fees, expert witness fees, and costs incurred by Williams in the hearing on attorney fees May 10, 1995 of $3,894.81 are reasonable. Williams incurred an expense of $1,019.00 for publication of the transcript in the almost seven hour hearing.
Findings Of Fact The Hearing Officer finds that if this request was approved, and pumpage reduced at the old wells to 1.5 MGD that together with the 1 MGD well New Port Richey would have permits totaling 6.5 MGD. Considering a service area population of 20,000 people, this would be 300 gallons of water per person per day in the service area, or over two (2) time1s the generally accepted per capita usage. While the Hearing Officer recognizes the desirability of shifting the water sources for the coastal area further inland and the desirability for the City to have emergency water pumping capacity, the per capita quantities involved in New Port Richey total water resource program are out of line and are unjustifiable in light of current and even projected needs within the 3.5 year period of this permit. Many solutions exist to emergency pumping, not the least of which is installation of gas or diesel anxillary pumps at least one of the Starkey wells. The Hearing Officer would note that salt water intrusion is an important basis for approval of the Starkey Well Field applications, and that pumping 1.5 MGD from the old wells will not allow the full benefit to the coastal water supply to be achieved. Continued salt water intrusion will work a hardship on all well owners in the New Port Richey area. The Hearing Officer is also aware, having heard the case, of the application of the 1 MGD well at Starkey Well Field. Part of the justification for approval of that application was that it would be used to meet peak demands when this instant application was approved. (See Hearing Officer's Recommended Order dated August 5, 1976.) Together with the old wells, this would provide 2.5 MGD for peak usage, or an amount equal to the daily per capita needs for 20,000 people, over and above the 4 MGD requested in this application. The Hearing Officer further notes that an objection to this current application was filed in behalf of an adjacent landowner. There is no indication within the file provided the Hearing Officer that this landowner received notice of the instant hearing by letter or publication.
Recommendation The Hearing Officer having considered the law and the evidence recommends the denial of this application, and further, in the absence of any proof of notice to the objecting adjacent landowner, the Hearing Officer recommends that the Board permit him to present any evidence which he feels is relevant at its consideration of this application. DONE and ORDERED this 27th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Counsel for SWFWMD Jack B. McPherson Esquire Counsel for City of New Port Richey
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell`s reponsibilities to the District ,were evaluation of the subject application. An application for consumptive water use permit has been filed in proper form by Redd Orange Concentrates, Inc., and admitted into evidence as Exhibit A. The water source is two existing wells located on a 44.3 acre tract of land located in Polk County, within the Hillsborough Basin. The applicant is in the food processing business and processes orange fruit into a concentrated drink. The water is to be used primarily to cool refrigeration compressors and evaporators and secondarily to wash fruit. A food processing plant engaged in similar activities has been on-site using the existing wells since 1948. The plant is in operation approximately 120 twenty-four hour days annually. Proper notice has been given to all persons entitled thereto, pursuant to statute and rules, and forty-six (46) written objections have been received and admitted into evidence as Composite Exhibit C. Pursuant to Mr. Szell's testimony, none of the matters set forth in Section 16J-2.11(2) and (4), F.A.C., exist so as to require the denial of this permit; The maximum daily withdrawal sought is four million gallons and the average daily withdrawal sought is two million gallons. The water crop allowed by Subsection 16J-2.11(3), F.A.C., is 44,000 gallons. Thus, the requested withdrawal is 4,334.08 percent of the water crop. Mr. Robert W. Sterling presented oral objection stating that quite a few people didn't understand the gross amount of water for which a consumptive use permit is sought herein. He further stated that he would like to see a lot of this water recycled. He noted that he was aware that some people close to the plant have had wells that dried up, but he speculated that this might have been caused by the general drought. Mr. Szell testified that, in his expert Opinion, the withdrawal requested by the application will have no harmful effect on neighboring water availability and that the amount sought to be consumptively used is consonant with the food processing industry and, within that context, in the public interest. For that reason, Mr. Szell recommended that an exception be granted in this application and a consumptive water use permit issued in the amounts requested, even though those amounts exceed the water crop theory. Mr. Szell recommended that in the event a consumptive water use permit is issued in the amounts requested by the application, that the flow of the wells be monitored via the Parschall flume method in accordance with the provisions already made by the applicant for such monitoring.
Recommendation It is recommended that, with regard to Application No. 7500018 by Redd Orange Concentrates, Inc., that an exception to Subsection 16J-2.11(3), F.A.C., be granted and that a consumptive water use permit be issued in the amounts sought by the application with the condition that flow metering devices satisfactory to the Board be installed and operated on the subject water sources. Entered this 27th day of August, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33501 Mr. E. B. Freyfogle, President Redd Orange Concentrates, Inc. P. O. Box 950 Lakeland, Florida 33802
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell, was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for Consumptive water use permit has been filed in proper form by Pat Nathe Groves, Inc., and admitted into evidence as Exhibit A. The water source is an existing well located on a 40-acre tract of land in Pasco County within the Withlacoochee Basin. Proper notice has been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The maximum daily withdrawal sought is 720,000 gallons and the average daily withdrawal sought is 59,178 gallons. A request for an average daily withdrawal of 59,178 gallons exceeds the water crop of the subject lands as defined by Section 16J-2.11(3), F.A.C. The requested consumption is 114.1 percent of the appropriate water crop. The maximum average daily withdrawal available to the applicant, which is ire compliance with the water crop of the subject lands, is 35,500 gallons. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsection 16J-2.11(2), and (4), F.A.C., exist so as to require the denial of this permit.
Recommendation It is recommended that Application No. 7500019, submitted by Pat Nathe Groves, Inc., Route 2, Box, 132, Dade City, Florida 33525, for a consumptive water use permit be denied. Entered this 28th day of July, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33501 James P. Nathe Pat Nathe Groves, Inc. Route 2, Box 132 Dade City, Florida 33525
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within the 30 days of rendition of the order to be reviewed.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
