The Issue Whether Petitioner's dredging and filling on his property in Center Hill, Florida, qualifies for an agricultural exemption under section 373.406(2), Florida Statutes,1/ from the requirement to obtain an environmental resource permit from the Southwest Florida Water Management District.
Findings Of Fact The Property is comprised of 118 acres of contiguous parcels located within Section 23, Township 21 South, Range 23 East, in Sumter County, at the intersection of County Road 469 and County Road 710 in Center Hill, Florida. Title to the Property is held by Petitioner and his wife under various entities that they control.2/ The District is an administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its geographic boundaries, and to administer and enforce chapter 373, Florida Statutes, and related rules under chapter 40D of the Florida Administrative Code. The Department is the state agency authorized under section 373.407, Florida Statutes, to make binding determinations at the request of a water management district or landowner as to whether an existing or proposed activity qualifies for an agricultural-related exemption under section 373.406(2). Petitioner uses the Property for raising cattle, an agricultural use. The activities at the Property are operated under the name "Serenity Ridge Farms." Petitioner has had up to 65 head of cattle on the Property, but since 2011, has kept only approximately 30 head. The Property is classified as agricultural pursuant to section 193.461, Florida Statutes. At the time Petitioner acquired the Property, there was an approximately 2.5-acre, more or less triangular, wetland at the southern end of the western parcel at the intersection of State Road (SR) 469 and County Road (CR) 710, Center Hill, Florida (the Site).3/ This wetland was originally the northern part of a much larger wetland system but, years before, had been severed from the larger system by the construction of the two roads which form a “V” at the southern boundary of Petitioner’s property. Due to its severance from the larger system, the condition of the wetland on the Site was adversely affected. In addition, the Site had been used by others for dumping various types of debris over the years, including tires, appliances, and concrete. In approximately 2007, Petitioner decided to clean up the Site and build a pond. Although the primary water needs for his cattle had been met with water troughs serviced by a four- inch well on the Property, he intended to use the pond as a supplemental source of water supply for his cattle. In deciding to build the pond, Petitioner did not consult with the District. Nor did he confer with an engineer regarding the amount of water the pond should hold to meet the needs of his cattle. Rather, his decision as to the size and configuration of the pond was driven by the footprint of the area in the Site that Petitioner perceived as "full of garbage" and a "landfill." In March 2007, Petitioner began cleaning up the Site. He noticed a stench from the garbage as the area was cleaned. During cleanup, 26 old tires, 14-cubic yards of old appliances, and pieces of concrete and steel were removed from the Site. While there were no accurate wetland surveys of the Site prior to the initiation of Petitioner's clean-up efforts, historical photographs of the Site and remnant plants indicate that, at the time Petitioner undertook the cleanup, the wetland had been significantly impacted. The construction of roads SR 469 and CR 710, which occurred prior to 1973, severed and excluded the Site from the larger wetland area, preventing the free flow of water beyond the Site. Although remaining a wetland, the severance adversely impacted the wetland even before the dumping. The likely dominant species in the wetland were Carolina Willow (Salix spp.) and Primrose Willow (Ludwigia spp.). While both Carolina Willow and Primrose Willow are obligate wetland indicator species,4/ Primrose willow can be a nuisance species and Carolina willow can form a monoculture. In June 2007, the District became aware of Petitioner's activities on the Site. The District opened a complaint file and advised Petitioner that he should not proceed without a permit. Petitioner met with District staff on a number of occasions during his activities in an attempt to find a resolution with the District, but a resolution was never reached. As a result of Petitioner's dredging and filling, a 1.12-acre pond was created and an area of approximately 1.3 acres of wetland was filled. There is no remaining wetland function at the Site. In July 2008, the City of Center Hill sent a letter to the District's Environmental Regulation Manager. The letter, dated July 2, 2008, was signed by the City of Center Hill's Mayor, Chairman of the City Council, and City Clerk, and stated in pertinent part: As community leaders we have many responsibilities that include the stabilization and revitalization of the City of Center Hill. We are fortunate to have citizens who are concerned and active regarding the quality of life in the neighborhoods they reside in. The upkeep of our neighborhoods remains a critical element to the success of our community. Code enforcement cannot be successful without the support of our local citizens. It is the responsibility of each of us to keep our properties code compliant. This will ensure a safe and healthy City. As part of a large voluntary effort, we are pleased that Serenity Ridge Farms in eastern Center Hill implemented a clean-up on property adjacent to the intersection of SR 469 and CR 710 (E. Jefferson Street). The community has increased traffic visibility at this location after the removal of nuisance overgrowth. Additionally, the hauling of debris from the site eliminated a public health hazard that existed as a common dumping-ground for many years. In fact, the work at this location far exceeds any code compliance among the nearly 60 cases that have come to our attention in recent years. Property owners like Serenity Farms are what make our City in Sumter County a great place to live. Hence we ask that our correspondence be included in your files and distributed to members of your staff as you see fit. The subject property has no code deficiencies in the City of Center Hill. Despite the City's letter and efforts between Petitioner and the District, negotiations to settle the District's complaint by restoration or mitigation of the alleged adverse impacts of Petitioner's dredge-and-fill activities have been unsuccessful. The District’s governing board authorized initiation of litigation against Petitioner on December 14, 2010. On January 4, 2011, Petitioner submitted an after-the- fact application to the District for an environmental resource permit for the pond, along with an approximately $1,500 permit application fee. After conducting a site meeting to review the impact of Petitioner's activities, District staff made a request for additional information. The request for additional information (RAI) requested an amount of engineering that, according to Petitioner, would make compliance cost prohibitive. As Petitioner explained in his testimony: My quick estimate, and what the engineering, required all of that, surveys[,] to[p]ographic surveys, could have been anywhere from 50 to [$]75,000, maybe more. While the actual costs to comply with the Districts RAI have not been determined, Petitioner's testimony that the RAI requirements were cost prohibitive is credited. On November 14, 2011, the District wrote a letter to the Department formally requesting a binding determination from the Department as to whether the activities on the Property qualify for the agricultural exemption afforded by section 373.406(2). After receiving the District’s request, Department staff conducted a site visit of the Property on December 28, 2011. The approximately 1.12-acre open water area resulting from Petitioner’s dredging and filling ranges from 4 to 6 feet deep at the center, depending on the groundwater level. At the time of the District’s site visit, the central pond depth was approximately four feet. December is the dry season in this area of Florida and in 2011 there was a drought. The Department’s survey of the Site shows a water depth of six feet. There has been some recruitment of wetland vegetation in the shallower areas of the pond. In fact, some of the emergent vegetation is of higher quality than that which existed prior to the dredging and filling, and there is evidence that wildlife is utilizing it. In addition, Petitioner’s activities included the construction of berms below the bisecting roadways that help filter direct road run-off that previously washed into the Site. The Site, however, has not been restored to a wetland in any significant way. No regeneration is expected at sustained depths of greater than two feet. The maximum recommended depth for planting is one-and-one-half feet. The pond is fenced off, preventing the cattle from direct pond access. Petitioner has spent over $12,000 landscaping and putting in an irrigation system around the pond area. The irrigation system is designed to water the landscaping, including sapling live oaks and sod. Neither landscaping a pond nor irrigating landscaping around a pond is typical for cattle ponds. Petitioner has stated that he would someday like to build a retirement home overlooking the pond. The irrigation system, like the watering troughs on the upland portions of the Property, is serviced by a four-inch diameter well. Generally, a four-inch well can produce 60-100 gallons per minute. The pond as constructed contains approximately 100,000 gallons in the first four inches of water alone. The District’s standard permitting allocation for water withdrawal for cattle is 12 gallons of water per day. Under the Department’s best management practices rule,5/ the allocation is up to 30 gallons per head of cattle per day. On February 10, 2012, the Department rendered its Preliminary Determination which concluded that Petitioner’s activities did not meet the requirements for an agricultural exemption. Under the heading "Application of Statutory Criteria,” the Preliminary Determination stated: Pursuant to Section 373.406(2) F.S., all of the following criteria must be met in order for the permitting exemption to apply. "Is the landowner engaged in the occupation of agriculture, silviculture, floriculture, or horticulture?" YES. The [Department's Office of Agricultural Water Policy] finds that [Petitioner] is engaged in the practice of agriculture on 118 acres of agricultural land in Sumter County, as evidenced by their current agricultural land use classification, the ongoing agricultural production activities observed on site, and the aforementioned cattle sale receipts. "Are the alterations (or proposed alterations) to the topography of the land for purposes consistent with the normal and customary practice of such occupation in the area?" NO. [The Department] finds that the construction of a cattle watering pond within the footprint of a wetland is not a normal and customary practice for the area because: Cattle watering ponds are not normally constructed within wetlands; and Cattle watering troughs were observed in other upland locations throughout the property, precluding the need for a cattle pond in this location. "Are the alterations (or proposed alterations) for the sole or predominant purpose of impeding or diverting the flow of surface waters or adversely impacting wetlands?" NO. (As to impeding or diverting surface waters.) [The Department] finds that the construction of a pond in the wetland was not for the sole or predominant purpose of impeding or diverting surface waters. During the December 28, 2011 site visit, [the Department's Office of Agricultural Water Policy] staff verified that the post-development drainage patterns are consistent with the pre-development drainage patterns. Secondly, the wetland is not connected to offsite drainage systems, as it was severed in its entirety by the construction of SR 469 and CR 710. This occurred prior to [Petitioner] taking ownership of the property. Lastly, the entire farm's drainage system is gravity driven, and is devoid of discharge pumps. YES. (As to adversely impacting wetlands.) [The Department] is aware that the wetland was already of questionable quality (see letter from the City of Center Hill) when the pond was constructed, given that the wetland was severed and excluded from the larger wetland system by the construction of SR 469 and CR 710. Nevertheless, [the Department] finds that the activity was for the sole or predominant purpose of adversely impacting the wetland, as the character of the wetland was destroyed. In sum, the Preliminary Determination concluded that Petitioner’s dredging and filling activities did not qualify for the agricultural exemption provided under section 373.406(2) because the activities are not normal and customary and they adversely impacted wetlands. At the final hearing, however, the evidence indicated that Petitioner’s activities were normal and customary for cattle operations in the area. While the water needs of Petitioner’s cattle are usually served by a four-inch well, the pond constructed at the Site has been an effective supplemental source of water for Petitioner’s cattle operations. When the well ran dry, Petitioner used pump trucks to siphon water from the pond and fill the upland troughs. Petitioner plans to put a pump in the pond to supply water to his cattle, but has not yet done so. Man-made, belowground cattle-watering ponds are very typical in Florida, especially in south and southwest Florida because of the high water tables in the southern part of the peninsula.6/ Further, “[i]t is not uncommon practice for Florida cattle ranchers to excavate cattle ponds, remove muck from existing cattle ponds, and/or grade side slopes of ponds in low lying depressional areas to provide a safe and reliable water source for their cattle.”7/ The fact that it is common for cattle ponds to be built in low-lying areas was further demonstrated by aerial photographs presented by Petitioner’s witness, Mr. Modica, of areas near the Property, including an approximately six-acre pond off Palm Avenue (the Sanchez property), a pond at a site labeled Emory Lane, and a pond off CR 48. While the ponds are considered by the District to be out of compliance on the grounds that they may have adversely affected wetlands, their existence shows that dredging and filling in low areas for cattle ponds is common practice in the area.8/ Although the pond is larger than needed because the footprint of the dumping area was large, and Petitioner may have some non-agricultural plans for the Site in the future, under the facts and evidence as outlined herein, it is found that the pond constructed by Petitioner was for purposes consistent with common practices for cattle operations in the area. On the issue of whether there was adverse impact to a wetland, the evidence showed that Department changed its position several times while drafting the Preliminary Determination. Of the five drafts of the Preliminary Determination, on the question (c) "[a]re the alterations (or proposed alterations) for the sole or predominant purpose of . . . adversely impacting wetlands?” one draft stated: UNSURE. (As to adversely impacting wetlands.) Documentation shows a 2.47 acre wetland impact area. This dredge and fill activity was for the purpose of converting the wetland to an open water and pasture area. However, this remnant wetland area was severed and excluded from the larger wetland system, as it was originally impacted by the construction of SR 469 and CR 710. Although wetland conditions prior to Zagame’s actions cannot be determined with certainty, a letter from the City of Center Hill indicates questionable wetland condition, which obfuscates remaining quality and function. Another draft, in answering the same question, stated: NO. (As to adversely impacting wetlands.) In the opinion of the [Department], the impacted remnant wetland was of questionable quality (see letter from the City of Center Hill) having been previously severed and excluded from the larger wetland system, by the construction of SR 469 and CR 710. Considering those factors addressed in the above- quoted drafts of the Department’s drafts of the Preliminary Determination, as well as the evidence of the condition of the wetland when Petitioner began his cleanup operations, it is found that the predominant purpose and effect of Petitioner’s activities was to construct a cattle pond and clean up a dumping ground, not to adversely impact a wetland.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Agriculture and Consumer Services enter a final order finding that the activities on Petitioner’s property addressed in this case are exempt pursuant to section 373.406(2), Florida Statutes. DONE AND ENTERED this 1st day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2013.
Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issues in this case are set out in the Petition to Determine Invalidity of Agency Rules and Agency Statement filed by A. Duda and Sons, Inc. (Duda): Count I, whether the St. Johns River Water Management District (SJRWMD) has an invalid and unadopted strategy to use various means to negate the agricultural exemption set out in Section 373.406(2), Florida Statutes; Count II, whether Section 3.4.1(b) of SJRWMD's Applicant's Handbook: Management and Storage of Surface Waters (the Handbook), which is incorporated by reference in Florida Administrative Code Rule 40C-4.091, is invalid essentially because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague; Count III, whether Rule 40C-4.041 is invalid essentially because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague; Count IV, whether certain documents--namely, all or part of The Manual of Reference Management Practices for Agricultural Activity (November 1978) (the Manual), excerpts from the Journals of the Florida House of Representatives and Senate (1984), and parts of the Model Water Code Commentary (Univ. of Florida 1972)(the Code Commentary), all of which are referred to in Section 3.4.1 of the Handbook but not filed with the Secretary of State--are invalid because they were not properly incorporated by reference under Rule 1S-1.005(2), because they conflict with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and because they are vague; and Count V, whether Rule 40C-44.041 is invalid because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague.
Findings Of Fact Duda clearly has standing since it is challenging the validity of SJRWMD rules and alleged rules that pertain to an enforcement action SJRWMD is bringing against Duda. As reflected in the Statement of the Issues, Section 373.406(2), Florida Statutes, is at the heart of most of the issues in this case. It states: 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. Section 3.4.1(b) of SJRWMD's Handbook states, in pertinent part, how SJRWMD interprets the exemption set out in Section 373.406(2), Florida Statutes: In determining whether an exemption is available to a person engaged in the occupation of agriculture, silviculture, floriculture or horticulture, the following questions much be addressed: Is the proposed topographic alteration consistent with the practice of agriculture, silviculture, floriculture, or horticulture? Is the proposed topographic alteration for the sole or predominant purpose of impounding or obstructing surface waters? If the first question is answered affirmatively and the second is answered negatively, an exemption under subsection 373.406(2), F.S., is available. The exemption is construed as set forth in the Conference Committee Report on CS/CS/HB 1187, Journal of the House of Representatives, May 29, 1984, page 734 and Journal of the Senate, May 28, 1984, page 475. The District presumes that the following activities are consistent with the practice of silviculture when they are undertaken to place property into silvicultural use or to perpetuate the maintenance of property in silvicultural use. The following activities are also presumed not to be for the sole or predominant purpose of impounding or obstructing surface waters: normal site preparation for planting of the tree crop; planting; and harvesting. If any activity is undertaken to place the property into a use other than silviculture (for example: harvesting which is designed to clear property in preparation for commercial, industrial or residential development rather than regeneration) the activity is not considered to be consistent with the practice of silviculture and will be subject to the permitting jurisdiction of the District. Examples of activities which are considered to be for the sole or predominant purpose of impounding or obstructing surface waters because they have the effect of more than incidentally trapping, obstructing or diverting surface water are activities which create canals, ditches, culverts, impoundments or fill roads. In determining consistency with the practice of agriculture occupations, the District will refer to the following publication: "A Manual of Reference Management Practices for Agricultural Activities (November, 1978)[.]" The following practices described in the manual are considered as having impoundment or obstruction of surface waters as a primary purpose: Diversion, when such practice would cause diverted water to flow directly onto the property of another landowner Floodwater Retarding Structure Irrigation Pit or Regulating Reservoir Pond Structure for Water Control Regulating Water in Drainage Systems Pumping Plant for Water Control, when used for controlling water levels on land Other practices which are described in the manual and which are constructed and operated in compliance with Soil Conservation Service standards and approved by the local Soil and Water Conservation District are presumed to be consistent with agricultural activities. Practices which are not described in the manual are presumed to be inconsistent with the practice of agriculture and a permit is required for the construction, alteration, operation, maintenance, removal, or abandonment of a system, subject to the thresholds. See Appendix H for a complete listing of agricultural practices described in the manual. A copy of the manual may be obtained by contacting the District headquarters. Appendix H to the Handbook sets out brief descriptions of listed soil conservation practices for agriculture and states that those practices are described in detail in the Soil Conservation Service's Field Office Technical Guides; it also sets out several other recognized Best Management Practices (BMPs) for agriculture. Appendix H of the Handbook is a verbatim reproduction of the part of the Manual from which it is taken. While Section 3.4.1(b) of the Handbook advises that a copy of the entire Manual may be obtained from SJRWMD, it only incorporates the parts set out verbatim in it and Appendix H. The conference committee reports referred to in Section 3.4.1(b) of the Handbook recommended enactment of the Warren S. Henderson Wetlands Protection Act of 1984 (the Henderson Act), were voted on, and were approved by the House of Representatives and the Senate. Both reports stated in pertinent part: The language contained in s. 403.913, relating to agricultural activities, shall be construed in conjunction with s. 373.406(2) to exempt from permitting only those activities defined as "agricultural activities" pursuant to this act in accordance with the Commentary to s. 4.02.(2) of the Model Water Code. Section 403.913[now 403.927](4)(a), Florida Statutes, stated: "Agricultural activities" includes all necessary farming and forestry operations which are normal and customary for the area, such as site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, harvesting, construction of access roads, and placement of bridges and culverts, provided such operations do not impede or divert the flow of surface waters. The Commentary to Section 4.02.(2) states in pertinent part: The intent of this subsection is to allow persons engaged in agricultural, floricultural, and horticultural operations to engage in ordinary farming and gardening without obtaining a construction permit under §4.04. Theoretically, such operations may incidentally trap or divert some surface water. For example, by plowing a pasture a farmer is trapping and diverting surface water that would have constituted part of the runoff and eventually would have become part of the surface water of the state. Without this exemption the farmer would have theoretically been required to obtain a permit under §4.04. In addition, it would appear that all changes of topography which would alter natural runoff, such as contour plowing, would also require a construction permit under §4.04. The quantity of the water being diverted and trapped is so small that it would serve no practical purpose to require a permit for such work. In addition, the administrative burden of regulating such operations would be enormous. Rule 40C-4.041 provides in pertinent part: Unless expressly exempt, an individual or general environmental resource permit must be obtained from the District under Chapter 40C-4, 40C-40, 40C-42, 40C-44 or 40C-400, F.A.C., prior to the construction, alteration, operation, maintenance, abandonment or removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works, including dredging or filling, and for the maintenance and operation of existing agricultural surface water management systems or the construction of new agricultural surface water management systems. Rule 40C-44.041 provides in pertinent part: Unless expressly exempt by Section 373.406, F.S., or Rule 40C-4.051 or 40C- 44.051, F.A.C., a permit is required under this chapter for the maintenance and operation of existing agricultural surface water management systems which serve an agricultural operation as described in paragraph (a) or (b) below. Other than the argument that certain agency statements are unadopted statements defined as rules, Duda's primary argument is that Section 373.406(2), Florida Statutes, is unambiguous and that SJRWMD's interpretation of it, as reflected in its rules and statements, is contrary to the plain meaning of the unambiguous statutory language. Specifically, Duda focuses on SJRWMD's interpretation of the language "for purposes consistent with the practice of such occupation" and "not for the sole or predominant purpose of . . . obstructing surface waters." But it is concluded that SJRWMD's interpretation of the statutory language is as or more reasonable than Duda's. Section 3.4.1(b) of SJRWMD's Handbook describes seven activities that are not "consistent with the practice of [the listed occupations]," including just one that may be disputed by Duda--namely: "Diversion, when such practice would cause diverted water to flow directly onto the property of another landowner." Since Duda's activities that are subject to SJRWMD's enforcement actions do not "cause diverted water to flow directly onto the property of another landowner," Duda's challenge did not focus on that part of Section 3.4.1(b) of the Handbook but rather on diversions of water that do not "cause diverted water to flow directly onto the property of another landowner." But to the extent that Duda was attacking this part of SJRWMD's interpretation, the evidence presented by Duda did not prove that diversion of water to flow directly on the property of another landowner is consistent with the practice of the listed occupations. The Handbook also describes, through Appendix H, activities "presumed to be consistent with agricultural activities." Duda has no dispute with activities described in Appendix but disputes the Handbook's statement that all other activities are "presumed to be inconsistent with the practice of agriculture." But the presumption is rebuttable, and the impact of the statements in the Handbook is to simply require proof of entitlement to the agricultural exemption for activities not listed in Appendix H in proceedings under Sections 120.569 and 120.57, Florida Statutes. Duda also argues that, by its plain meaning, the word "purpose" as used in Section 373.406(2), Florida Statutes, means the actor's subjective intent, not the action's objective effect --in this case, namely, the more-than-incidental trapping or diversion of water to create canals, ditches, culverts, or fill roads. To the contrary, one of the several accepted meanings of the word "purpose" is: "1a : . . . an object or end to be attained : INTENTION b : RESOLUTION, DETERMINATION 2 : a subject under discussion or an action in course of execution." See Merriam Webster's Collegiate Dictionary 1011 (11th ed. 2005). That dictionary also identifies intention as a synonym of the first sense given for purpose and lists design and end among the additional synonyms in the synonymy paragraph after the entry for intention. See id. at 651. For a list of synonyms of the second main meaning of purpose listed in the dictionary ("an action in the course of execution"), one may turn to the second entry for purpose in the companion thesaurus likewise published by Merriam- Webster. That entry lists use in its fourth sense ("a particular service or end") and function as additional synonyms of purpose. See Merriam Webster's Collegiate Thesaurus 591 (1988). Likewise, the dictionary lists purpose as a synonym of function in its sense as "the action for which a person or thing is specially fitted or used or for which a thing exists." See Merriam Webster's Collegiate Dictionary 507 ("function implies a definite end or purpose that the one in question serves or a particular kind of work it is intended to perform"). Broadly, these potential meanings of purpose describe an action, operation, or effect (or a function, use, or result) of a thing done, which can be observed objectively. Duda also argues that, by its plain meaning, the word "obstructing surface waters" as used in Section 373.406(2), Florida Statutes, cannot mean just more-than-incidentally trapping or diverting surface waters to create canals, ditches, and culverts because those works speed or increase water flow rather than obstruct it. To the contrary, Merriam-Webster defines obstruct as "1 :to block or close up by an obstacle 2 :to hinder from passage, action, or operation : IMPEDE 3 :to cut off from sight." Treating impede as a synonym for hinder and obstruct and listing further synonyms at hinder. See Merriam Webster's Collegiate Dictionary 857. The synonymy paragraph at hinder states that the core meaning shared by obstruct and its synonyms is "to interfere with the activity or progress [of something]." Id. at 588 (emphasis added); accord, The American Heritage Dictionary 960 (defiing obstruct as "1. To block or fill a passage with obstacles or an obstacle. . . . 2. To impede, retard, or interfere with; hinder"). One of these possible meanings of obstruct describes interfering with or hindering something, including its passage, action, or operation. In interpreting the word "purpose" in Section 373.406(2), Florida Statutes, it is reasonable for SJRWMD to choose the alternative meaning of an action, operation, or effect (or a function, use, or result) of a thing done, which can be observed objectively. To choose the other alternative meaning of the word would place the regulator at the mercy of the subjective intent of the person regulated and could lead to absurd results. Also, in interpreting the word "obstructing" in Section 373.406(2), Florida Statutes, it is reasonable for SJRWMD to choose the alternative meaning of interfering with or hindering something, including its passage, action, or operation. First, if the word meant only blocking, obstructing would mean the same thing as impounding and would be redundant. Second, if SJRWMD chose "blocking" as the meaning the latter meaning of the word "obstructing," it would countenance draining wetlands to use the drained land for agricultural purposes. Such a result would be in direct conflict with the intent of Chapter 373 to manage and protect water resources. See Conclusion of Law 23, infra. The extrinsic evidence of legislative intent supports SJRWMD's interpretation of Section 373.406(2), Florida Statutes. For that reason, SJRWMD's interpretation of the statute--as reflected in the Handbook--does not conflict with, exceed, modify, or contravene the statute; does not exceed statutory authority; is not standard-less or vague (so as to give SJRWMD unbridled discretion); is not arbitrary or capricious; and is not unsupported by competent, substantial evidence. It also was not proven that SJRWMD has an invalid and unadopted strategy to use various means to negate the agricultural exemption set out in Section 373.406(2), Florida Statutes. To the contrary, the evidence proved that SJRWMD interprets the statute validly and in accordance with the extrinsic evidence of the legislative intent. Finally, in the nearly 25 years that SJRWMD has interpreted Section 373.406(2), Florida Statutes, essentially as reflected in the Handbook, the Joint Administrative Procedure Committee (JAPC) has never objected to SJRWMD's interpretation as being invalid.
Findings Of Fact The Dunes Golf and Country Club, Sanibel, is a partnership owned by John K. Kontinos and William R. Frizzell. They operate a nine hole golf course consisting of 65 acres of the eastern portion of Sanibel Island. The golf course is open to the public and, during the winter season, some 150 to 175 persons utilize the facility daily, but in the period May--November, it is utilized by only about 15 or 20 persons per day. The golf course is presently irrigated by water obtained from the lower Hawthorn and Suwannee aquifers through a well that is approximately 737 feet deep. On the days that water is pumped from the well, the pumping duration is from 8 to 12 hours per day, but the monthly hours during which pumping occurs averages approximately 155 hours per month. There is another existing well in another portion of the applicant's property which extends 896 feet into the Suwannee aquifer. The well presently in use (well number 1) has 546 feet of casing and the well that is not in use (well number 2) has 700 feet of casing. (Testimony of Kontinos, Exhibits 2, 4) On December 15, 1977, the Dunes Golf and Country Club submitted an application to the South Florida Water Management District for a consumptive use permit to withdraw 320 acre feet of groundwater per year to irrigate an area of approximately 109 acres. The intent of the application was to obtain a sufficient quantity of water to irrigate the golf course which the applicant intends to enlarge to consist of 18 holes. The additional 9 holes would cover some 44 acres and well number 2 is intended to be activated to provide additional water for this purpose. (Testimony of Kontinos, Keiling, Exhibits 1- 2) The South Florida Water Management District issued the required public notice of the application on March 30, 1978, and objections to the application were received by that agency from the City Council of Sanibel, the Island Water Association, Inc., and George R. Campbell. Public notice of hearing on the application was duly published on March 30, 1978. (Exhibits 5-7) The staff of the South Florida Water Management District reviewed the application and recommended continuation of the applicant's existing use from the lower Hawthorn Formation and use of additional irrigation water from the Suwannee aquifer in the total amount of 320 acre feet annually. It also recommended that the issuance of a permit should be conditioned in various respects to include semiannual submission of water quality data and pumpage records for each well, installation and maintenance of well controls, and repair or replacement of well casings, valves or controls that leak or become inoperative. The staff further recommended that maximum monthly withdrawals from the lower Hawthorn Formation be limited to 7.5 million gallons and 7.6 million gallons from the Suwannee Formation. At the hearing however, the South Florida Water Management District representative changed these recommendations to 8.9 MO and 6.1 MG respectively. Additionally, the initial recommendation of 320 acre feet annual withdrawal was reduced to 200 acre feet. This amount is considerably less that the average of 600 acre feet used on other comparably sized golf courses. Further the staff representative recommended at the hearing that a further condition be attached to the issuance of the permit; i.e., Condition 15, which requires the permittee to submit analyses of total dissolved concentrations in water samples from each well within 30 days of permit issuance and, if such concentration exceeds 4,000 MG/L, logging procedures as to the affected well will be required with necessary safeguards to be employed to eliminate any interaquifer leakage. (Testimony of Gleason, Exhibit 4) The objections of the City of Sanibel and the Island Water Association, Inc. involved concerns that further withdrawals from the lower Hawthorn aquifer will affect the availability of water which is treated by the water association for general island use. In addition, there is concern about possible contamination of the lower Hawthorn aquifer from interaquifer leakage. The Water Association is a member-owned cooperative that is not under the jurisdiction of the municipality. It is concerned about the draw down in the water table which will be occasioned by additional withdrawals by the applicant. It therefore believes that pumping tests should be conducted prior to the issuance of a permit to provide information concerning the capacity and safe yield of the wells. Although an Association expert testified that the proposed Dunes' withdrawal would create a cone of depression that would extend into and influence the existing Water Association wells, the evidence shows such influence to be minimal due to the fact that the Dunes wells are almost three miles away from the nearest Association well. Further, due to the limited time that the Dunes wells are pumped each day, the aquifer recovers to a certain extent during other hours. Although concerns are felt by the Water Association that water quality will be affected because of leakage from the Suwannee aquifer to the lower Hawthorn aquifer due to possible corrosion of steel casings in the Dunes wells, no evidence was presented that such casings are in fact defective and will contribute to degradation of water quality because of additional withdrawals. The additional special condition placed upon the issuance of a permit by the South Florida Water Management District will require correction of any such leakage that is discovered in the future. Previous studies show that the lower Hawthorn aquifer is separated from the Suwannee aquifer by the Tampa Limestone Formation which would slow down any entry of poorer quality water into the Hawthorn aquifer. It is found that the lesser amounts of water recommended by the South Florida Water Management District at the hearing will further reduce the likelihood of water quality degradation or draw down in other Island wells. (Testimony of Butler, Holland, Nuzman, Gleason, Exhibits 6, 8-13) Ecological concerns were expressed at the hearing by a public witness as to the wastefulness of irrigating golf coup Yes and the requirement for fertilizer in sandy soil which causes leaching of nutrients after heavy water use. (Testimony of Webb)
Recommendation That a permit be issued to the applicant authorizing the consumptive use of the quantity of water recommended by the South Florida Water Management District staff, subject to the recommended conditions thereto. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. Wheeler Post Office Box V West Palm Beach, Florida 33402 James D. Decker, Esquire Post Office Box 200 Ft. Myers, Florida 33902
