Findings Of Fact Application No. 76-00360 is for a new consumptive water use involving one well. The application seeks withdrawal of 1.29 million gallons per day average daily withdrawal and 2.59 million gallons per day maximum daily withdrawal. The water will be withdrawn from the Floridan Aquifer for the irrigation of tomatoes. The amount of water sought to be consumptively used will exceed the water crop as defined, by the district because approximately 25 percent of the water will be discharged off site. The land which is the subject of this application is being leased by the applicant for the purpose of growing tomatoes. Applicant's lease terminates in September, 1978 with an option to renew. Except as otherwise set forth above, the applied for consumptive use will not violate any of the conditions set forth in Subsections 16J-2.11(2), (3) or (4), F.A.C. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: The applicant reduce runoff to 4.6 percent of the amount pumped by January 1, 1978. The district be allowed to install flowmeters and be allowed to go on the property to read these meters. The permit shall terminate on September 30, 1978, unless permitee seeks an extension. That the applicant give written notice of his intention to renew the lease if he so intends.
Recommendation It is hereby RECOMMENDED that Application No. 76-00360 be granted subject to the conditions set forth in paragraph 5 above. ENTERED this 26th day of May, 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 Ralph Williford Staff Attorney Glisson and Williford Farms, Inc. Southwest Florida Water Post Office Box 911 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
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 Whether Save the Manatee Club has standing in this proceeding? Whether the exemptions in paragraphs (3), (5) and (6) of Rule 40D-4.051, Florida Administrative Code, (the Exemptions) are "invalid exercises of delegated legislative authority" as defined in paragraphs (b) and (c) of Section 120.52(8), Florida Statutes? Whether the Exemptions violate the prohibitions and restrictions on agency rulemaking contained in the last four sentences of Section 120.52(8), Florida Statutes?
Findings Of Fact The parties Petitioner, Save the Manatee Club, Inc., is a not-for- profit corporation dedicated to protecting the manatee. Respondent, The Southwest Florida Water Management District, is one of five water management districts in the State of Florida. A public corporation created pursuant to Chapter 61- 691, Laws of Florida, the District's geographic boundaries encompass a number of counties or some part of them including the three counties on the shores of Tampa Bay: Hillsborough, Pinellas and Manatee. See Section 373.069(2)(d), Florida Statutes. Within this boundary, the District is generally charged with the protection of water resources and with the management and storage of surface waters of the State pursuant to Part IV, Section 373.403 et seq., Florida Statutes. Intervenor, South Shores Properties Partners, Ltd., is a limited partnership composed of a subsidiary of Tampa Electric Company (TECO) and another business organization, Shimberg Cross Company, referred to by its President Glen Cross as "actually SCSS" (Tr. 133), apparently an acronym for Shimberg Cross Company. Mr. Cross' company is the general partner in the South Shores partnership. South Shores was formed in anticipation of closing on a contract entered by Shimberg Cross to purchase a parcel of real estate in Hillsborough County. The closing proceeded in January of 1998. On January 23, 1998, eight days or so before the closing, South Shores was formed as "a limited partnership organized under the laws of the State of Florida." (Petitioner's Exhibit no. 15). It succeeded to the contract rights of Shimberg Cross and then, pursuant to the closing, became the owner of the real estate subject to the contract. South Shores hopes to sell the property to Atlantic Gulf Communities, an organization that will actually develop it. If the arrangement with Atlantic Gulf Communities is not consummated, South Shores will look for another developer or develop the property itself. No matter what party (if any) is the actual developer, South Shores, as the present owner, now seeks the benefit of the Exemptions in support of a District- issued conceptual permit for development of the parcel in Hillsborough County (the Parcel). The Parcel and Its Proposed Development The Parcel is 720 acres in southwestern Hillsborough County. South Shores proposes to use it for a multi-phase, mixed-use project. The development project is denominated "Apollo Beach aka (sic) Bay Side" (Petitioner's Exhibit 13) on the draft of the conceptual permit attached to the District's Notice of Proposed Agency Action. Atlantic Gulf Communities calls it "Harbor Bay". (Petitioner's Exhibits 3 and 4). (It will be referred to in this order as Apollo Beach/Bay Side). If all goes as planned by South Shores, the Parcel's developer (whether South Shores, Atlantic Gulf Communities, or some other party) will be able to provide the residential portion of Apollo Beach/Bay Side with direct access by boat to Tampa Bay through an existing canal system on the Parcel. For now access to the bay is blocked by an earthen berm or "plug." With the plug in place, boat access to the bay from the canals can only be achieved by means of a boat lift. A lagoon is also part of South Shores' development plans for Apollo Beach/Bayside. Not yet excavated, the lagoon will allow residents to harbor boats close to their residences. If the lagoon is dug, a boat lift (different from the one necessary to allow boats to cross the plug if left in place) will be constructed to give the boats access to the canal system. With access to the canal system established, once the plug is removed, the boats will have unrestricted access to Tampa Bay. In the "Abstract" section of the conceptual permit proposed for issuance by the District, the project was described as follows: Apollo Beach (a.k.a. Bay Side) is a proposed multi-phase, mixed use development on approximately 720.0 acres in . . . Southwestern Hillsborough County. The project will include single-family and multi- family residential areas and commercial sites. The property is in close proximity to Tampa Bay, West of U.S. Highway 41 and immediately south of the existing Apollo Beach development. The site is presently undeveloped but does contain an existing manmade canal system that is tidally connected to Tampa Bay. The Applicant has demonstrated that the proposed project has an Environmental Resource Permit exemption pursuant to Chapters 40D-4.051(3)(5) and (6), F.A.C. and will only require Standard General Permits for Minor Surface Water Management Systems for the future construction in accordance with Chapter 40D-4.041(4), F.A.C. Because of this exemption, this Conceptual Permit will only review the storm water quality aspects of the project in accordance with 40D-301(2) and will not address storm water quantity issues or impacts to wetland/fish and wildlife habitats. The project will include the realignment of existing Leisley Road and the construction of a roadway system to serve the proposed residential and commercial areas. The project will also include the excavation of a "fresh water Lagoon" approximately 136 acres in size. Most of the proposed single-family residential lots will be constructed on the "Lagoon" or existing canal system. Surface water runoff from the upland portions of the project will be treated in 25 proposed ponds or isolated wetlands prior to discharge to the "Lagoon" or existing canal system. (Petitioner's Exhibit no. 13.) The ultimate effects to manatees of the proposed development project, if completed, were described by Ms. Thompson, the Club's witness: A typical project such as this one will introduce a good number of powerboats into the system, in this case, Tampa Bay. And manatees are impacted by powerboats either through propeller injuries or through collision with the hull of a fast-moving boat and the results are either death or in some cases sublethal injuries that may have other consequences such as inability to reproduce, et cetera. . . . [T]he very same boats can affect manatee habitat by prop scarring, boats going over sea grass beds and destroying the grasses. They also, in shallow water, kick up . . . turbidity which can affect light attenuation reaching the sea grass beds. And then there are the water quality issues which have secondary impacts to the sea grass beds . . . (Tr. 96). The Exemptions preliminarily afforded South Shore by the District will allow the removal of the plug in the canal system. Because removal of the plug will facilitate access to Tampa Bay by power boats harbored in the lagoon, it is the issue about the development of the Parcel that most concerns the Club in its efforts to protect manatees in Tampa Bay and elsewhere. Standing of Save the Manatee Club (i). The Manatee The manatee is the "Florida State marine mammal." Section 370.12(2)(b), Florida Statutes. Designated an endangered species under both federal and state law, 50 CFR s. 17.11 and Rule 39-27.003, Florida Administrative Code, the manatee is protected by the federal Endangered Species Act and by the federal Marine Mammal Protection Act. In Florida, the manatee enjoys, too, the protection of the Florida Endangered Species Act and the Florida Manatee Sanctuary Act. The State of Florida has been declared to be "a refuge and sanctuary for the manatee." Id. The Club's Purpose and Activities The Club's primary purpose is to protect the manatee and its habitat through public awareness, research support and advocacy. Long active in efforts to protect the manatee, the Club has achieved special status in manatee protection in Florida. In 1996, it was the recipient of a resolution by the Florida Legislature's House of Representative recognizing its endeavors on behalf of the manatee. The Club has been designated a member of the Manatee Technical Advisory Council provided by the Florida Manatee Sanctuary Act. See sub-sections (2)(p) and (4)(a) of section 370.12(2)(p) and (4)(a), Florida Statutes. The Department of Environmental Protection annually solicits recommendations from the Club regarding the use of Save the Manatee Trust Fund monies. In furtherance of its efforts, the Club has frequently participated before the Division of Administrative Hearings in administrative litigation involving manatees and manatee habitat on behalf of itself and its members. (iii). The Club's Membership The Club has approximately 40,000 members. The number of individual persons who are members of the Club, however, is far in excess of this number because many members are groups that receive membership at discounted fees. For example, a family may be one member or, as is quite common, an entire elementary school classroom may be one member. One-quarter of the Club's membership resides in Florida. Approximately 2,200 of the members are on the west coast of Florida with 439 in Hillsborough County, 584 in Pinellas and 165 in Manatee. The total number of members is therefore about 1,188 in the three counties whose shores are washed by Tampa Bay. (iv). Tampa Bay Tampa Bay is "prime essential manatee habitat." (Tr. 65). At least two factors make this so: the Bay's sea grass beds (manatee feeding areas) and warm water sources, particularly in winter, three of which are "power plant effluence." (Tr. 77). Not surprisingly, therefore, the Club has funded long- term research on the manatee in Tampa Bay. It has "provided about ten years of financial support for aerial surveys to count manatees in Tampa Bay and determine their distribution and the health of the sea grass beds . . ." (Tr. 75), a research project which finished last year. This research has contributed to other manatee research in the Bay leading the Club's witness at hearing to conclude, "[t]here's no other place in the state of Florida that has as long a term, as comprehensive a [manatee] database as Tampa Bay." (Tr. 76). Other activities in Tampa Bay conducted by the Club include the placement of manatee awareness signs. And the Club's staff biologist sits on the Tampa Bay Manatee Awareness Coalition established by the Tampa Bay National Estuary Program. In sum, the quality of manatee habitat in Tampa Bay is enough to make it especially important to the Club. But, its importance to the Club takes on added significance because it is the site of one of only three adoption programs the Club sponsors in Florida. The Tampa Bay Adoption Program The Tampa Bay Adopt-a-Manatee Program was established in April of 1999. The six manatees subject to the Tampa Bay Manatee Adoption Program (as of October 7, 1999) have been adopted by 1,229 members, 284 of which have been schools. (Petitioner's Exhibit 9). Those adopting receive a photo of the manatee, a biography, a scar pattern sheet, and a map showing their manatees' favorite habitat areas along the west coast of Florida. Of the six "Tampa Bay Adoption" program manatees, five have been seen in Tampa Bay and one south of Tampa Bay in the Marco Island area. Of the five seen in the bay, four "winter at the warm water discharge area of Tampa Electric Company's power plant" (Petitioner's Exhibit No. 5, Tr. 67) where they can be observed by members of the Club and the Tampa Bay adoption program as well as by the public. The TECO Power Plant The TECO power plant area is the major warm water refuge for manatees known to frequent Tampa Bay, particularly during the winter. The waters near the plant have been observed to be the host of more than 100 manatees at one time, following the movement of cold fronts through the area. The plant has a manatee-viewing center, one of the two principal places in the state for viewing manatees in the wild. The Club's membership handbook gives detailed information about how to see manatees at the TECO viewing center. During the winter months, the Club frequently directs its members to the TECO viewing center. Precisely how many individuals, either as members of the Club through a group membership or as members, themselves, actually have viewed manatees at the TECO viewing center or elsewhere in Tampa Bay was not established. Nor was any competent estimate made of how many might visit the TECO viewing center in the future. The viewing center and the power plant are in the vicinity of Apollo Beach/Bay Side, the development project South Shores seeks to have approved for an Environmental Resource Permit (the ERP). The SWFWMD ERP Program Chapter 373, Florida Statutes, governs water resources in the state and sets out the powers and duties of the water management districts, including their permitting powers. Part IV of the chapter covers the management and storage of surface waters. According to SWFWMD rules, "'Environmental Resource Permit' means a conceptual, individual, or general permit for a surface water management system issued pursuant to Part IV, Chapter 373, Florida Statutes." Rule 40D-4.021, Florida Administrative Code. The permit issued to South Shores in this case through the application of the challenged Exemptions, is a conceptual Environmental Resource Permit. See Petitioner's Exhibit no. 13 and Rule 40D-4.021(2), Florida Administrative Code. The conceptual permit preliminarily issued South Shores is one that was reviewed by the Club's staff, just as it reviews many permit applications for potential effects to manatees. Because of use of the Exemptions as proposed by the District to South Shores, however, any review the Club conducted to assure that the permit met all general permitting criteria was of no use. Much of those criteria were not applied by the District to the application. If the Exemptions were not available to South Shores, the District would have to employ ERP permitting criteria to the surface water management activities associated with the development project, including removal of the plug, lagoon construction, and boat lift installation. The Exemptions, therefore, keep the Club from participating in what otherwise would be the process for the District's administrative decision on the application of those criteria. In sum, the Exemptions preempt the Club's participation in the state mechanism provided by ERP permitting criteria for assessing, inter alia, threats to the manatee and its habitat from harms associated with the proposed development project. The District recognized this effect of the permit in the draft of the permit. The draft states: "Because of this Exemption, this Conceptual Permit will . . . not address . . . impacts to . . . wildlife habitat." (Petitioner's Exhibit no. 13). The Exemptions, therefore, prevent the Club from carrying out functions useful to protection of manatee habitat, that is, participation in the District's application of wildlife habitat protection criteria. The non-application by the District of permit criteria related to wildlife habitat protection and the Club's inability to assure itself that the criteria are correctly applied poses the danger that manatee habitat will be lost, diminished or damaged. If the Club is ultimately proved right in its assertion that the manatee and its habitat will be damaged by the South Shores development without application of permitting criteria related to wildlife habitat, then the approved application increases the threat that Club members will encounter greater difficulty in observing, studying and enjoying manatees in the wild and in Tampa Bay in particular. Standing of South Shores to Intervene The District has no opposition to South Shores' intervention. As for the Club's position with regard to South Shores intervention, the Club stipulated to South Shores' standing to intervene in a notice filed with its proposed order. South Shores benefits, moreover, from the application of the Exemptions to its proposed project. In light of not having to show compliance with permitting criteria otherwise applicable, South Shores will escape some permitting costs and therefore, enjoys economic benefit. Furthermore, by allowing South Shores to avoid the requirements of compliance with ERP permitting criteria, the Exemptions facilitate fulfillment of the obligation of South Shores to obtain a permit to develop. The District's Rule-making Authority The District governing board has been granted general authority by the Legislature to adopt rules to implement the provisions of Chapter 373, Florida Statutes, the Florida Water Resources Act of 1972: The governing board of the district is authorized to adopt rules . . . to implement the provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. The Legislature has framed this authority in relationship to the District's power to administer the Chapter and its Part IV: In administering the provisions of this chapter the governing board has authority to adopt rules . . . to implement provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. In another provision in Chapter 373, the district has been given rule-making authority that exceeds the authority to implement specific provisions granted typically to most administrative agencies in Florida. This authority is broad indeed. Tied to water use in general, it is bound only by unspecified conditions as warranted: . . . governing boards, . . . may: Adopt rules . . . affecting the use of water, as conditions warrant, . . . Section 373.171, Florida Statutes. The Exemptions; Specific Authority and Laws Implemented The Exemptions are as follows: 40D-4.051 Exemptions. The following activities are exempt from [ERP] permitting under this chapter: * * * (3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984. *(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984. * * * Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if: The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and The Developer has notified the District of its intention to rely upon this exemption prior to April 1, 1985. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984. As specific authority, the Rule containing the Exemptions references 373.044, 373.113, 373.149, 373.171, and 373.414(9), Florida Statutes. For "Law Implemented", the Rule lists Sections 373.406, 373.413 and 373.414(9), Florida Statutes. Section 373.414(9) is cited by the Rule both as specific authority and as one of the laws implemented. The first of the statutory provisions cited by the Rule as a law implemented is Section 373.406, Florida Statutes. It reads: 373.406 Exemptions.- The following exemptions shall apply: Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture, discharge, and use water for purposes permitted by law. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees. All rights and restrictions set forth in this section shall be enforced by the governing board or the Department of Environmental Protection or its successor agency, and nothing contained herein shall be construed to establish a basis for a cause of action for private litigants. The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact. The department or the governing board also may establish by rule exemptions or general permits that implement interagency agreements entered into pursuant to s. 373.046, s. 378.202, s. 378.205, or s. 378.402. Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by- case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption. Nothing in this part, or in any rule or order adopted under this part, may be construed to require a permit for mining activities for which an operator receives a life-of-the-mine permit under s. 378.901. Certified aquaculture activities which apply appropriate best management practices adopted pursuant to s. 597.004 are exempt from this part. For the most part, this section sets out general classes of exemptions. And it allows the District to consider whether an activity comes within an exemption on a "case-by-case" basis. See Section 373.406(6), Florida Statutes. But, none of these "exemptions" appear to have anything to do with the grandfather protections provided by the Exemptions at issue in this proceeding. See paragraphs 93-96, below. Section 373.413, Florida Statutes, in pertinent part, reads: (1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required. Other than to make reference in subsection (1)to the existence of exemptions under Part IV of Chapter 373: "Except for the exemptions set forth herein . . .", Section 373.413 does not deal at all with exemptions. Certainly, it does not make reference with any specificity to the subject matter of the Exemptions at issue in this proceeding. Cited both as "specific authority" and "law implemented" is paragraph (9) of Section 373.414, Florida Statutes. Unlike Sections 373.406 and 373.413, it has a connection to the Exemptions at issue in this proceeding as is seen from perusal of the underscored language, below: (9) The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provision of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(35). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively . . . (emphasis supplied.) History of the Exemptions The Exemptions have been adopted twice and amended several times. One of the amendments and the second adoption followed omnibus legislation in the environmental permitting arena: the amendment in the wake of the passage of the Warren S. Henderson Wetlands Protection Act of 1984, and the second adoption in the aftermath of the Florida Environmental Reorganization Act of 1993. (i). Amendment after the Henderson Act The Warren S. Henderson Wetlands Protection Act of 1984, (the "Henderson Act", later codified as Part VII of Chapter 403, Florida Statutes) was enacted through Chapter 84-79, Laws of Florida. Approved by the Governor on June 1, 1984 and filed in the Office of the Secretary of State on the same day, (see Laws of Florida, 1984, General Acts, Vol.1, Part One, p. 224) the Act had an effective date of October 1, 1984. The Henderson Act does not amend any provision in Part IV of Chapter 373, Florida Statutes, the part of the Water Resources Act which delineates water management district authority over the program for permitting related to the management and storage of surface waters ("MSSW"). Nonetheless, between the adoption of the Henderson Act and its effective date, the District amended and adopted rules in Chapters 40D-4 and 40D-40 of the Florida Administrative Code because of the Act's passage. Rule 40D-4.011 set out the policy for the amendments and adoptions: (2) The rules in this chapter implement the comprehensive surface water management permit system contemplated in part IV of Chapter 373, Florida Statutes. As a result of the passage of Chapter 84-79, Laws of Florida, the Warren G. Henderson Wetlands Protection Act of 1984, the District has adopted the rules in this Chapter and Chapter 40D-40 to ensure continued protection of the water resources of the District including wetlands and other natural resources. (Exhibit OR 4, See the page containing paragraph (2) of Rule 40D- 4.011 in the exhibit.) /1 Exhibit OR 4, a document officially recognized during this proceeding, is denominated "SWFWMD's Rule Amendment No. 116." The exhibit contains a letter on SWFWMD letterhead, signed by Dianne M. Lee for "J. Edward Curren, Attorney - Regulation" dated September 5, 1984. Under cover of the letter is a rule package filed by the District with the Secretary of State on September 11, 1984. Included in the package is the newly amended Rule 40D-4.051. The amended 40D-4.051 contains subparagraphs (3), (5) and (6), the Exemptions challenged in this proceeding. They are worded precisely as they remain worded today. Consistent with the policy expressed in Rule 40D-4.011, Florida Administrative Code as filed in September of 1984, the effective date of the amendment to the Rule containing the Exemptions was the effective date of the Henderson Act: October 1, 1984. The Exemptions contained in the amendment filed in September of 1984 are "grandfather provisions." The first two are designed to protect certain projects, work or activities from the requirements of the Henderson Act if they had governmental approvals on October 1, 1984. The third is designed to protect from the Act "phased or long term buildout project[s]" that meet certain requirements, among them receipt of governmental approvals by October 1, 1984. At the time of the 1984 amendments, the Rule cited to Sections 373.044, 373.113, 373.149 and 373.171 for "Specific Authority," that is, the statutory source for the district's authority to make rules. For "Law Implemented" the Rule cited to Section 373.406, Florida Statutes. At that time, Section 373.406 contained only four subsections. These four are worded substantially the same as the first four subsections of the section today. Although Section 373.406 was the only law implemented by the Rule in 1984, the section is neither mentioned in nor part of the Henderson Act. The section, itself, does not make mention of the Henderson Act or of protection from it based on government approvals obtained by October 1, 1984. Section 373.406, Florida Statutes, in its form both immediately before and after the Henderson Act provided exemptions that appear to have nothing to do with the Exemptions challenged in this proceeding. The only connection between Section 373.406, Florida Statutes, in 1984 and the Exemptions at issue in this proceeding when amended into the Rule in 1984 appears to be the use of the term "exemptions." The exemptions set out in the Section 373.406, Florida Statutes, as it existed in 1984, are not related to grandfather protection from the effects the Henderson Act had on the District's permitting considerations. Following the amendment to the Rule containing the Exemptions, the Rule was amended further. It was amended on October 1, 1986, March 1, 1988, and January 24, 1990. None of these amendments appear to have affected the Exemptions under consideration in this proceeding. The Rule became the subject of rule promulgation by the District again, however, as a result of a second omnibus act of the Legislature in the environmental permitting arena, the Florida Environmental Reorganization Act of 1993. (ii). The Reorganization Act of 1993 Nine years after the passage of the Henderson Act, the Legislature enacted the Florida Environmental Reorganization Act of 1993 (the "Reorganization Act"). Passed as Chapter 93-213, Laws of Florida, the Session Law declares its underlying policy: Declaration of Policy.-- The protection, preservation, and restoration of air, water, and other natural resources of this state are vital to the social and economic well-being and the quality of life of the citizens of this state and visitors to this state. It is the policy of the Legislature: To develop a consistent state policy for the protection and management of the environment and natural resources. To provide efficient governmental services to the public. To protect the functions of entire ecological systems through enhanced co- ordination of public land acquisition, regulatory, and planning programs. To maintain and enhance the powers, duties, and responsibilities of the environmental agencies of the state in the most efficient and effective manner. To streamline governmental services, providing for delivery of such services to the public in a timely, cost-efficient manner. Section 2., Ch. 93-213, Laws of Florida. The Reorganization Act carried out this policy in a number of ways. Among these, it merged the Departments of Environmental Regulation (DER) and Natural Resources into the Department of Environmental Protection. In so doing and at the same time, it incorporated DER's dredge and fill permitting program instituted by the Henderson Act into the programs of the water management districts for the Management and Storage of Surface Waters (MSSW). The permitting program that resulted from the consolidation of DER's dredge and fill permitting program with the District's MSSW permitting program is what has been referred to in this order as the Environmental Resource Permitting or ERP program. With regard to rules under the new ERP program, the Reorganization Act amended Section 373.414, Florida Statutes. Two sentences in subsection (9) of the amended section bear repeating: The department and the governing boards [of the water management districts], on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. * * * Such rules may establish exemptions . . . if such exemptions . . . do not allow significant adverse impacts to occur individually or cumulatively. . . . As discussed earlier in this order, the Henderson Act did not directly create exemptions in the District's MSSW permitting program. Nonetheless, the District through the Exemptions of Rule 40D-4.051, Florida Administrative Code, provided "grandfather" protections in the wake of the Act effective October 1, 1984. Whereas grandfather concerns were raised in front of the District after the Henderson Act, grandfather concerns and concerns about other situation that should be entitled to exemptions were raised to the Legislature during the advent of the Reorganization Act. These concerns were addressed in the Florida Environmental Reorganization Act, itself. The Act provided specific exemptions that were self- executing. Included were ones providing grandfather protection for certain activities approved under Chapter 403, Florida Statutes, (DER's dredge and fill program) from imposition of new ERP permitting criteria expected to be promulgated in the wake of the Reorganization Act. The are contained in subsections (11) through (16) of Section 373.414, Florida Statutes. None of these exemptions make reference to the Exemptions at issue in this case. Of these provisions, only one addresses activities subject to rules adopted pursuant to Part IV of Chapter 373 prior to the anticipated ERP permitting criteria: An application under this part for dredging and filling or other activity, which is submitted and complete prior to the effective date of [the anticipated ERP rules] shall be reviewed under the rules adopted pursuant to this part [including the Exemptions in Rule 40D-4.051] and part VIII of chapter 403 in existence prior to the effective date of the [anticipated ERP rules] and shall be acted upon by the agency which received the application, unless the applicant elects to have such activities reviewed under the [anticipated ERP rules]. Chapter 93-213, Section 30, p. 2149 of Laws of Florida, 1993, General Acts, Vol. 1, Part Two, now Section 373.414(14), Florida Statutes. 2/ Rule Activity in 1995 In observance of the mandate in the first section of Section 373.414(9), Florida Statutes, the District undertook adoption of rules "to incorporate the provisions of [Section 373.414] . . . into the rules governing the management and storage of surface waters." These rules were the ERP rules anticipated by the Reorganization Act. They included the rules necessary for the District to administer under its ERP program its newfound authority over much of the dredge and fill permitting program formerly administered by DER and now consolidated with its permitting authority in its MSSW rules. Among the rules passed under the authority of the Reorganization Act's Section 373.414(9) is Rule 40D-4.051, the Rule containing the Exemptions subject to this proceeding. Filed with the Secretary of State on September 13, 1995, the adoption package for the new readopted states the following, in pertinent part: 40D-4.051 Exemptions The following activities are exempt from permitting under this chapter [Individual ERPs]: (1) - (7) - No change. (Exhibit OR 6, p. 14). The result of this adoption is that the Exemptions became part of the District's ERP Rules. They now apply to both the MSSW authority under Part IV, Chapter 373, Florida Statutes, which existed prior to the Reorganization Act, and, in a consolidated fashion, the District's authority conferred by the Reorganization Act to regulate certain dredge and fill activity formerly regulated by DER.
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
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, City of Winter Haven, submitted application No. 7500096 for a consumptive-use permit for an average daily withdrawal of 18 million gallons to be withdrawn from the Florida Aquifer in Polk County, Florida. The application is for an existing use and withdrawal is for public supply from twelve (12) withdrawal points. The center of withdrawls will be located at Latitude 25 degrees 01' 40" North, Longitude 81 degrees 43' 54" West in Polk County, Florida. Notice of the September 3, 1975 hearing was published in a newspaper of general circulation, to-wit: The Lakeland Ledger, published daily in Lakeland, Florida, on August 9 and 16, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, receipt of certified mail, copy of notice, and the affidavit of publication were received without objection and entered into evidence. No letters of objection were received, however, at the hearing the recommendation for granting the permit was conditioned upon certain things being done by the City and Mr. Cecil Thurmond, the Assistant City Engineer for the City of Winter Haven, and Mr. Jegg McKibbon, Assistant County Attorney for Polk County, objected to the conditions and it was decided that this Recommended Order would not be issued until the parties could agree and stipulate on conditions to be met by the permittee. The stipulations were entered into and are attached together with pertinent maps to this report and made a part hereof.
Recommendation Grant the requested consumptive-use permit as requested. DONE and ORDERED this 29th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Cecil Thurmond Assistant Engineer City of Winter Haven 245 22nd Street, S.W. Winter Haven, Florida Jay T. Ahern, Esquire Staff Counsel Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 STIPULATIONS CITY OF LAKELAND #7500098 and CITY OF WINTER HAVEN #7500096 Totalizing flow meters will be installed on all production wells, monthly flow meter reports will be submitted in writing to the District On April 15, July 15, October 15 and January 15, for each respective proceeding quarter. The permit will expire On December 31, 1980.
Findings Of Fact Application No. 7500050 requested water from one (1) withdrawal point. Said withdrawal is for public supply. This application is for an existing use. The center of withdrawals will be located at Latitude 28 degrees 07' 49" North, Longitude 82 degrees 26' 22" West in Hillsborough County, Florida. Total continuous acreage is 59.4 acres. The use is for not more than 29,000,000 gallons of water per year and not more than 91,650 gallons of water during any single day to be drawn from the Floridian Aquifer. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune in the issues of May 28 and June 4, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified nail, the copy of the Notice and the affidavit of publication were received without objection and marked Exhibit 1. Copy of the franchise application to the Health Department regarding the laboratory analysis on the public water supply was introduced into evidence and received without objection and marked Exhibit 2. The parties agreed to file a joint stipulation as follows: The agreement that a flow meter be installed. That monthly readings be submitted to the District staff at the Headquarters office. That applicant supply evidence that the individual lots will be restricted from having private wells. A copy of the joint stipulation was received by the Division of Administrative Hearings on July 14, 1975. Said stipulation encompassed the following: That applicant, Groveland Developments, Inc. install a flow meter of the propeller type on the well; take monthly readings, and send them into the District monthly. Said stipulation did not encompass the third (3rd) condition agreed to at the hearing, to-wit: That evidence would be supplied that individual lots to be developed in conjunction with this application be restricted from having private wells thereon. Witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes.
Recommendation Grant Application No. 7500050 for a consumptive-us permit for the quantities of water applied for conditioned upon the items enumerated in the joint stipulation and further conditioned upon the submission by the applicant evidence showing that the individual lots will be restricted from having private wells thereon. August 22, 1975 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: T. Ahern, Esquire Staff Attorney southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Mr. George Szell, Hydrologist Permit Section Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Groveland Developments, Inc. Post Office Box 578 Lutz, Florida 33549 Mr. Frank Ripa Housel & Martinez, Inc. Consulting Engineers and Land Surveyors Post Office Box 9215 Tampa, Florida 33674 Attachment to the Recommended Order STATE OF FLORIDA
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
