Findings Of Fact Application No. 76-00450 is for a consumptive use permit from 10 wells located in Hillsborough County, to be used for public water supply for the City of Temple Terrace. The permit seeks to withdraw 2.028 million gallons a day average annual withdrawal and 4.564 million gallons per day maximum daily withdrawal. The sought for withdrawal may affect other wells by drawdown of an average of 1" in a surrounding well. Such a drawdown will not seriously and adversely affect the surrounding wells. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flowmeters of a type acceptable to the district on all withdrawal points covered by the permit. That the applicant shall record the pumpage on a weekly basis and shall submit a record of that pumpage to the district quarterly beginning January 15, 1977. All individual connections supplied by withdrawals permitted will be metered. Records of meter readings will be made available to the district upon request. That the permit shall expire on December 31, 1980.
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 use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
The Issue The matters here presented concern the challenges by the named Petitioners to Rule Sections 17-3.061(2)(b), 17-3.111 (11), 17-3.121(14), 17-4.02(17),(19), and 17-4.28(2), Florida Administrative Code, related to definitions of "submerged lands" and "transitional zone of a submerged land" and the requirements set forth by rule provisions for permits related to dredge and fill activities in "submerged lands" and in the "transitional zone of submerged land" and water quality in Florida. The rule challenges are in keeping with the provisions of Section 120.56, Florida Statutes. Specifically, Petitioners claim that the rules are invalid exercises of delegated legislative authority. The Petitioners do not, by the challenges, question the procedures utilized in the promulgation of the subject rule provisions.
Findings Of Fact Petitioner, Baker Cut Point Company, is a corporation which owns real estate in Key Largo, Florida, and James C. Dougherty owns the company. The Respondent, State of Florida, Department of Environmental Regulation, is a governmental body which has been granted certain regulatory powers, to include the responsibility for requiring environmental permits for certain activities over which the Respondent has jurisdiction. In furtherance of that responsibility, the Respondent has promulgated the aforementioned rules which are the subject of this rules challenge case. The Petitioners have been subjected to the terms and conditions of the aforementioned rule provisions in the course of their application for environmental permits for developments in property in Key Largo, Florida, under DER File Nos. 44-21381 and 44-14356. Those matters were the subject of a Subsection 120.57(1), Florida Statutes, hearing in Division of Administrative Hearings' Cases Nos. 80-760 and 80-1055. The hearings in those cases were conducted on the dates described in this order and were held in view of the disputed material facts between the parties occasioned by the Respondent's stated intention to deny the permits based upon the Respondent's belief that the activities contemplated within the permit process would be in violation of certain regulatory provisions, to include those rule provisions which are the subject of this action. Throughout the process of permit review and the hearing de novo, and in response to the revisions to the original permit requests, the Respondent has continued to claim jurisdiction in keeping with the rule provisions at issue. The Baker Cut Point Company DER File No. 44-14356 letter of intent to deny dates from April 3, 1980, and the corresponding letter of intent to deny related to DER File No. 44-21381, James C. Dougherty, dates from May 27, 1980.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
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 134-acre tract in Pasco County within the Withlacoochee Basin, as shown by Exhibit A. The water is to be used for irrigation purposes. The maximum daily withdrawal sought is 432,000 gallons and the average gaily withdrawal sought is 42,608 gallons. Proper notice of this proceeding and application have been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The amount of withdrawal requested is 92.20 percent of the maximum average daily withdrawal allowed by the water crop theory, as set forth in Section 16J-2.11(3), F.A.C. Therefore, the requested withdrawal is not violative of the consumptive use test. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsection 161-2.11(2), (3), and (4) exist so as to require the denial of this permit.
Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
The Issue Does the Florida Department of Agriculture and Consumer Services (Department)'s proposed rule 5E-1.023 constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: On February 2, 1996, the Department published in the Florida Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be known as Rule 5ER-1.023, which the Department indicated that it intended to adopt. The proposed rule reads: 5E-1.023 Fertilizer. Procedures for Landowners and Leaseholders to Submit the Notice of Intent to Comply with Nitrogen Best Management Practices (BMPs). Definitions "Interim Measures" means primarily horticultural practices consistent with the fertilizer recommendations published by the University of Florida or the Florida Agricultural and Mechanical University, or modified by the Department, to reflect public input. "Notice of Intent to Comply with BMPs" means a notice of intent to comply with nitrogen Interim Measures and/or BMPs, or to no longer apply fertilizers or other soil-applied nutritional materials containing nitrogen. Notice of Intent to Comply with Nitrogen BMPs and all document requests made of the department must be submitted to the Environmental Administrator, Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Tallahassee, Florida 32399-1650. Proof of providing Notice of Intent to the Department must be retained by the submitter. The Notice must contain the following information related to the implementation of the BMPs and Interim Measures: the name of the BMP or Interim Measures to be followed, the date of implementation, the name or other identification of the parcel or land unit upon which the practices will be implemented, the county(s) where said parcels are located, and the signature of the landowner(s) or leaseholder(s). The Department will consider requests to: (a) adopt Best Management Practices and Interim Measures as defined in this rule, other than those incorporated herein, in accordance with Section 576.045(3)(b), Florida Statutes; and, (b) modify adopted Best Management Practice and Interim Measures as defined in this rule based upon submission of adequate data in accordance with Section 576.045(3)(b), Florida Statutes. Approved Nitrogen BMPs Shadehouse Grown Leatherleaf Ferns. The BMP for Shadehouse grown leatherleaf ferns found in the University of Florida, Cooperative Extension Service, Institute of Food and Agricultural Sciences Bulletin 300 (published February 1995), Irrigation and Nutrient Management Practices for Commercial Leatherleaf Fern Production in Florida" is hereby adopted. Copies may be obtained from Central Florida Research and Education Center, Institute of Food and Agricultural Sciences, University of Florida, 2807 Binion Road, Apoka, Florida 32707. The associated record keeping requirements specified in "Record- keeping For The Nitrogen Best Management Practices For Shadehouse Grown Leatherleaf Ferns" dated 12-01-95 is also adopted. Copies are available from the Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Doyle Conner Building, Tallahassee, Florida 32399-1650. (a) Approved Nitrogen Interim Measures. Citrus. [The approved "Nitrogen Interim Measure For Florida Citrus", dated 12-01-95], and the associated recordkeeping requirements dated 12-01-95 [are hereby adopted and incorporated by reference into this rule]. Copies may be obtained from the Department of Agriculture and Consumer Services, Division of Agricultural Environ- mental Services, 3125 Conner Blvd. Doyle Conner Building, Tallahassee, Florida 32399-1650. The foregoing documents are incorporated by reference into this rule. [Emphasis added] Specific Authority 576.045 FS. Law Implemented 576.045. History - New Section 576.011(2), Florida Statutes, provides: (2) "Best-management practices" means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations. Because of the lack of research or field testing with citrus to determine the most practicable methods of fertilization of citrus in conjunction with nitrate groundwater quality standards, the Department is proposing the Nitrogen Interim Measure for Florida Citrus rather than Best-management practices for citrus. Interim Measures is not defined by statute. However, the Department has defined Interim Measure in proposed rule 5E-1.023. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides for maximum nitrogen (N) rates per calendar year to be determined by set amounts of N per tree. The range of annual N rates for groves four years old or older is set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per acre per year. For grapefruit the range is 120 - 210 pounds N per acre per year. On February 21, 1996, Petitioners filed a Petition challenging the Department's proposed rule 5E-1.023 on the basis that the proposed rule was an invalid exercise of delegated legislative authority. More specifically, the Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more particularly, that portion of the Nitrogen Interim Measure setting the range of annual N rates for grapefruit and oranges in groves four years old or older which Petitioners contend is arbitrary and capricious. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove in Polk County, Florida and such corporation is solely owned by James T. Griffiths and Anita N. Griffiths. Withers and Harshman, Inc. is a Florida corporation owning grapefruit groves in Polk County and Highlands County, Florida with its principal place of business located in Sebring, Highlands County, Florida. Petitioners would be substantially affected by the adoption of this proposed rule and thereby have standing to bring this action. The parties have stipulated that: on November 5, 1993, the Department gave notice in the Florida Administrative Weekly of its intent to adopt proposed rule 5E-1.023; and proposed rule 5E-1.023 implements Section 576.045(6), Florida Statutes, by: establishing procedures for landowners and leaseholders to submit notice of intent to comply with nitrogen best management practices (BMPs) and interim measures; (2) adopting a specific BMP for shadehouse grown fern; and (3) adopting an interim measure for citrus. Petitioners concede that their challenge to the proposed rule is based solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is arbitrary and capricious. Prior to, and independent of, the Department's work on proposed rule 5E-1.023, the faculty of the University of Florida, Institute of Food and Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus fertilization guidelines. This revision eventually became SP 169, Nutrition of Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida citrus fertilization since 1954. SP 169 is the official position of IFAS on the subject of nutritional requirements for citrus in Florida. Sometime around August 1994, Department met with and requested IFAS to provide the Department with a interim measure for citrus fertilization which could be adopted by the Department. The Department reviewed the first draft of the proposed interim measure for citrus fertilization prepared by IFAS and concluded that it would not be acceptable to the citrus industry because it was too detailed. Thereafter, the first draft was revised by IFAS and now appears as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25. While IFAS's interim measure contains many recommendations, the recommendation most relevant to this proceeding is the recommended range of the annual rate of N for groves four years old or older. The recommended rates are expressed in pounds of N per acre per year. For oranges a range of 120 - 200 pounds of N per acre per year is recommended. For grapefruit a range of 120 - 160 pounds of N per acre per year is recommended. For other varieties a range of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the criteria, including, but not limited to, soil load, varieties, leaf and soil analysis, fertilizer placement and application frequency and timing for determining a rate within the recommended range and to exceed the upper level of the range. Using these criteria a range of 120 - 180 pounds of N per acre per year for grapefruit can be supported and range of 120 - 240 pounds of N per acre per year for oranges can be supported. SP 169 also recommends that all available sources of N, including, but not limited to, organic sources and foliar applications, be included in the calculation of the annual N rate. Also recommended is that while the annual N rate may be exceeded in any given calendar year, the average annual rate over three years should not exceed the guidelines. Subsequent to receiving the proposed citrus interim measure from IFAS, the Department held a series of meetings and public workshops wherein growers and representatives from the fertilizer industry and grower organizations were given an opportunity to be heard and to make suggestions. In an effort to make the interim measure more flexible so as to gain industry acceptance, the Department compromised on several of the citrus fertilization guidelines set out in SP 169. The comprises were: (a) not to include any N from foliar application in the calculation of the annual N rate; (b) to include only fifty percent of the total N content of the source from all organic sources in the calculation of the annual rate of N; and (c) increase the recommended range of the annual rate of N for grapefruit and oranges to 120 - 210 pounds per acre and 120 - 240 pounds per acre, respectively, without considering the criteria set out in SP 169 for determining a rate within the recommended range or to exceed the upper limits of the range. In deciding not to include any N from foliar application in the calculation of the annual rate of N, the Department considered: (a) the fact that N from foliar application would be quickly absorbed through the leaf and reduce the likelihood of any N leaching into the ground water; (b) that the cost of foliar application of N would prevent the indiscriminate use of foliar application of N; and (c) that foliar application would give the grower wishing to obtain maximum yield a source of N not included in the calculation of the annual rate. However, the Department did not consider the additional cost of the N to the grower who heretofore had used sources of N other than foliar application for obtaining maximum yield. In making the decision to include only 50 percent of the content of the source of N from all organic sources the Department took into consideration the public policy of encouraging the use of municipal sludge and other similar products, and the fact that on an average only fifty percent of the content of the source of N would be an available source of N. Although IFAS disagreed with the Department on not counting all the N in organic sources, IFAS did agree that since it was not known how much of the N in organic sources was immediately available, the figure of 50 percent of the content of the source was as good a figure as any. Increasing the range of the annual rate of N per acre from 120 - 160 pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240 pounds for oranges came about as a result of a meeting on April 20, 1995, at Florida Citrus Mutual. Apparently, the justification for the increase was due to the recommendations contained in the Criteria for selecting a rate within the recommended rate set out in SP 169, Fertilizer Guidelines which provides: Crop load. Nitrogen requirements vary as crop load changes. Replacement of N lost by crop removal is the largest requirement for N. Groves producing low to average crops do no require high fertilizer rates. Higher rates may be considered for very productive groves. Rates for oranges up to 240 lb per acre may be considered for groves producing over 700 boxes per acre. However, rates above 200 lb per acre should be used only if there is a demonstrated need based on leaf analysis, and if optimal fertilizer placement, timing, and irrigation scheduling are employed. For grapefruit producing over 800 boxes per acre, 180 lb N may be considered. The increase in the range of the annual rate per acre of N from 120 - 180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's concern over a potassium deficiency. Most fertilizers are formulated on a 1 to 1 ratio of N and potassium, and the application of only 180 pounds of potassium could result in a potassium deficiency. The Department did not consider if citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which would have allowed the proper application of potassium without increasing the annual N rate. The following language appears in SP 169, Fertilizer Guidelines, 6.2 Bearing Trees: Rates of 0.4 lb N per box for oranges land lb N per box for grapefruit were recommended previously. With good manage- ment, oranges frequently exceed 600 boxes per acre and grapefruit production is commonly above 800 boxes per acre. Use of lb N per box in groves producing over 500 boxes per acre results in application of over 200 lb N per acre. The advantage of rates above 200 lb has not been demonstrated. Economic benefits are quest- ionable, and the potential for groundwater contamination increases. A significant yield response to rates above 200 lb N per acre appears unlikely, and other management practices should be first evaluated if grove performance at 200 lb N per acre is not satisfactory. Experts, both growers and researchers, testifying for Petitioners and previous IFAS Research Bulletins on citrus fertilization, disagree with the statements: (a) that the advantage of annual rates of N above 200 pounds per acre has not been demonstrated; (b) that economic benefits of annual rates of N above 200 pounds per acre are questionable; and (c) that a significant yield response to annual rates of N above 200 pounds per acre appears unlikely. This language also appears to be in conflict the language quoted above dealing with the criteria, "Crop load". Petitioners' experts and previous IFAS Research Bulletins disagree with the conclusion that there is a basis for a higher annual rate of N per acre for oranges over grapefruit. On November 14, 1995, the Department presented the citrus Interim Measure which recommended a range of 120 - 210 pounds N per acre annual rate for grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to the Fertilizer Technical Council. After hearing testimony on the merits of the citrus Interim Measure, the Fertilizer Technical Council voted to recommend changing the citrus Interim Measure to provide that oranges and grapefruit be treated the same with a range of annual N rate per acre of 120 - 240 pounds for both. The Commissioner of Agriculture did not accept the recommendation from the Fertilizer Technical Council. In addition to the Fertilizer Technical Council, a large segment of the citrus industry, including, but not limited to, growers and grower organizations, expressed their approval of using the same range of annual rates of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the Department had already compromised by increasing the maximum annual rate of nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP 169.
Findings Of Fact Petitioner operates a citrus fruit packing plant at 219 West Floral Street, Ocoee, Florida. In the course of processing the fruit for packing Petitioner washes the fruit and then disposes of the wash water through a disposal system including a percolation pond and settling tanks. Water eventually percolates out of the pond and into the area groundwater. Petitioner's plant has previously been permitted by the Department of Environmental Regulation for wastewater disposal through a permit issued on August 2, 1977. Upon the expiration of that permit Petitioner applied for a new permit which is the one in issue here. As a specific condition of the new permit, the Department has required: The wastewater flow shall be measured on a daily basis. The following para- meters shall be monitored monthly in the effluent stream during packing plant operation. 5-day BOD pH TDS phenols These test results and the daily wastewater flow shall be reported to the DER, Orlando, Florida District Office no later than the 15th of the following month. Mr. Phillips, the president of Petitioner, has objected to the requirements of this condition because his activity does not discharge wastewater to the surface waters of Florida. At the hearing it was explained by the Department that the purpose of the monitoring condition is to determine potential groundwater problems which may result from the operation of citrus packaging plants in the Orange County area. The Department is collecting this data with the intention of issuing specific groundwater quality control rules related to citrus processing activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED; That the Department of Environmental Regulation issue a Final Order determining that specific condition number two remain a part of permit #1048- 63286 issued on December 28, 1982. DONE and RECOMMENDED this 8th day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983.
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
