The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
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 determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of April, 2011.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
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
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
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
The Issue The St. Johns River Water Management District (the "District") alleges in Case Number 97-4389 that Respondent, Modern, Inc. ("Modern"), excavated two ditches in wetlands without a permit, that the excavation was not exempt from a permit, and that Modern committed related acts alleged in the Administrative Complaint. The District proposes alternative plans for corrective action. Modern and its co-respondents ("Respondents") contend that the excavation was not required to have a permit because either it was not an activity covered by the permitting statutes or it was exempt. In addition, Respondents charge that the proposed agency action is based on an unadopted rule that does not satisfy the requirements of Section 120.57(1)(e), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.) In Case Numbers 97-4390, 97-4391, 97-4392, and 97-4393, Respondents challenge an Emergency Order issued by the District to stop the drainage of wetlands. Respondents contend that the Emergency Order is facially insufficient, that there was no emergency, and that the corrective action has worsened conditions. The issue in each of the rule challenge cases is whether an existing rule or an agency statement is an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8) and 120.56(1). Case Numbers 98-0426RX and 98-1180RX challenge Rule 40C-4.041 pursuant to Section 120.56(3). Case Number 98-1182RX challenges Rule 40C-4.051 pursuant to Section 120.56(3). Case Numbers 98-0427RU and 98-1181RU challenge an agency statement pursuant to Section 120.56(1) and (4). (Unless otherwise stated, all references to rules are to rules published in the Florida Administrative Code as of the date of this Recommended Order.) The parties identify approximately 57 issues in their respective Proposed Recommended Orders and Proposed Final Orders ("PROs" and "PFOs", respectively). Those issues relevant to the proceeding conducted pursuant to Section 120.57(1), including Section 120.57(1)(e), are addressed in this Recommended Order. The remaining issues are addressed in the Final Order issued on the same date as the date of this Recommended Order.
Findings Of Fact This proceeding arises from the excavation of two intersecting canals, or ditches, in January 1997 in Brevard County, Florida. One conveyance runs north and south and is identified by the parties as "NS1." The other conveyance runs east and west and is identified by the parties as "EW1." Part of the excavation occurred inside the St. Johns National Wildlife Refuge (the "Refuge"). The Refuge is owned and managed by the United States Fish and Wildlife Service (the "Wildlife Service"). All of the excavation occurred on property within the jurisdiction of the District and contiguous to property owned by Modern. On May 14, 1997, the District issued an Emergency Order authorizing the Wildlife Service to construct temporary weirs in NS1 and in EW1. The District intended the weirs to restore the bottoms of NS1 and EW1 to elevations which the District claims to have existed in NS1 and EW1 prior to the excavation. The Wildlife Service completed construction of the weirs on May 27, 1997. Excavation Site NS1 runs parallel to Interstate 95 ("I-95"). EW1 runs parallel to SR 50 and lies approximately 25 feet inside the southern boundary of the Refuge. The point where NS1 and EW1 intersect is west of I-95 by approximately .25 miles, or about 1100 feet, and north of SR 50 by approximately one-half mile plus 25 feet, or 2,665 feet. NS1 and EW1 intersect at a point that is approximately 2,903 feet northwest of the intersection of I-95 and SR 50. NS1 bisects a marsh ("Marsh-1") approximately 800 feet south of EW1. EW1 bisects a pond ("Pond-1") approximately 300 feet east of NS1. Pond-1 spans north and south of both EW1 and the southern boundary of the Refuge. Marsh-1 is south of the Refuge boundary and spans east and west of NS1. NS1 continues south of Marsh-1 and intersects SR 50 and an adjacent east-west canal immediately north of and parallel to SR 50 known as the Indian River City Canal ("IRCC"). NS1 proceeds south of the IRCC approximately 1.5 miles to a larger east-west canal, identified as both the Addison Canal and the Ellis Canal (the "Addison Canal"). The Addison Canal flows west from that point approximately four miles into the St. Johns River. NS1 runs north across EW1 approximately 1.5 miles from SR 50 to an east-west road known as Satterfield Road. An adjacent, parallel canal immediately south of Satterfield Road is identified as the Satterfield Road Canal. EW1 continues west from I-95 approximately 2.75 miles until it intersects Hacienda Road. EW1 runs east of I-95 for some distance. The excavation in January 1997 included both NS1 and EW1. NS1 was excavated from its intersection with SR 50 north approximately 2,687 feet to a point approximately 22 feet north of EW1. EW1 was excavated approximately 30 feet east of NS1. Contested Area The excavation site is in the southeast corner of a "rectangular tract" of land west of I-95 and north of SR 50 which comprises approximately 4.13 square miles. The rectangular tract and a "smaller parcel" east of I-95 make up the "contested area" in this proceeding. Rectangular Tract The rectangular tract measures approximately 2.75 miles from I-95 west to Hacienda Road and approximately 1.5 miles, from SR 50 north to Satterfield Road. The intersection of I-95 and SR 50 forms the southeast corner of the rectangular tract. The rectangular tract is bounded on the east by I-95; on the south by SR 50; on the west by Hacienda Road, which is about a mile or so east of the St. Johns River; and on the north by Satterfield Road. Satterfield Road is approximately three miles south of the boundary between Brevard and Volusia counties (the "county line"). Smaller Parcel A substantially smaller parcel abuts the east side of I-95. The smaller parcel is bounded on the west by I-95; on the south by SR 50; on the east by State Road 405 ("SR 405"); and on the north by the Satterfield Road Canal and what would be Satterfield Road if Satterfield Road extended east of I-95. SR 405 runs north and south parallel to and approximately .25 miles east of I-95 and approximately 2.7 miles west of the Indian River. Tribulation Harbor In this proceeding, legal interests from five separate sources flow into the contested area like separate rivers flowing into an inland harbor. The confluence of divergent legal interests results in a turbulent mix of the statutory responsibilities of state and federal agencies and the constitutional rights and business interests of private property owners. Respondents own over 4,500 acres of land in and around the contested area and have legitimate business or personal interests in the development or other use of their property. The District is statutorily charged with responsibility for the hydrologic basin of the St. Johns River (the "River Basin"), including the contested area. The contested area is circumscribed by a five-mile by four-mile area platted in 1911 as the Titusville Fruit and Farm Subdivision ("Titusville Farm"). The recorded plat of Titusville Farm established a drainage system of intersecting east-west and north-south canals. Some of the conveyances, including NS1 and EW1, run through the contested area. Federal law charges the Wildlife Service with responsibility for managing the Refuge. A substantial portion of the Refuge lies in that part of the contested area west of I-95. The contested area also includes portions of the Hacienda Road project. Private Property Modern is a Florida corporation owned principally by Mr. Charles Moehle who is also the president of the company and the father of Mr. Michael Moehle. Omni is a Florida corporation wholly owned by the younger Moehle. Modern owns two parcels of land in the contested area ("Modern-1" and "Modern-2"). The northern boundary of Modern-1 is just south of EW1 and the Refuge boundary. Modern-1 is bounded on the west by NS1, on the south by SR 50, and on the east by I-95. Modern-2 is inside the contested area in the smaller parcel east of I-95. Modern-2 comprises a substantial portion of the smaller parcel. Modern owns a third tract of land comprising approximately 4,500 acres west and south of Fox Lake ("Modern-3"). Modern-3 is within the District's jurisdiction and includes approximately three miles of land from Satterfield Road north to the county line, including one mile in Titusville Farm immediately north of Satterfield Road. 22. Modern-3 is bounded on the south by Satterfield Road; on the north by the county line; on the east by a north-south section line parallel to and approximately .75 miles west of I-95; and on the west by a section line that is approximately one mile west of what would be Hacienda Road if Hacienda Road extended north of Satterfield Road. A square mile section is carved out of the western half of Modern 3 in Section 10, Township 22 South, Range 34 East. Omni, Mr. Hart, and Mr. Nelson own separate parcels of land outside the contested area but proximate to the contested area. They claim that their property is directly impacted by the action taken in the Emergency Order and by the action proposed in the Administrative Complaint. Omni owns property on the east side of SR 405. Although the Omni parcel is outside of the contested area, it is adjacent to the smaller parcel and within both the River Basin and Titusville Farm. Mr. Hart owns property which is south of SR 50 approximately one mile west of the intersection of SR 50 and I-95. Although the Hart property is outside of the contested area, it abuts the southern boundary of the rectangular tract and is within the River Basin and Titusville Farm. Mr. Nelson owns property located a little more than a half-mile southeast of the intersection of SR 405 and SR 50. Although the Nelson property is outside of and not adjacent to the contested area, the property is within the River Basin and Titusville Farm. The District The District was created in 1972 as the state agency responsible for carrying out the provisions of Chapter 373 and for implementing the programs delegated in Chapter 403. Section 373.069(1)(c) describes the geographical jurisdiction of the District. The jurisdiction of the District includes all of the contested area. The River Basin includes all or part of 19 counties from south of Vero Beach to the border between Florida and Georgia. The counties entirely within the River Basin include Brevard, Clay, Duval, Flagler, Indian River, Nassau, Seminole, St. Johns, and Volusia counties. The counties partially within the River Basin are Alachua, Baker, Bradford, Lake, Marion, Okeechobee, Orange, Osceola, Polk, and Putnam. Titusville Farm Titusville Farm contains approximately 20 sections of land, plus an out-parcel to the southeast which has relatively little materiality to the issues in this proceeding (the "out- parcel"). Each of the 20 sections of land contains approximately 640 acres and, together, total approximately 12,800 acres. The exact dimensions of Titusville Farm are recorded in Plat Book 2, page 29 of the Public Records of Brevard County, Florida. With the exception of the out-parcel, Titusville Farm is bounded on the east by a section line approximately 1.25 miles east of I-95 and approximately 1.7 miles west of the Indian River; on the south by a section line approximately 1.5 miles south of SR 50 at what is now the Addison Canal; on the north by a section line approximately one mile north of what are now Satterfield Road and the Satterfield Road Canal; and on the west by the St. Johns River, which flows north at a point about a mile or so west of and parallel to what is now Hacienda Road. 3.3(a) History Titusville Farm was originally designed so that each quarter section of 160 acres was surrounded by intersecting east- west and north-south drainage canals intended to drain water westerly toward the St. Johns River and southerly toward what is now the Addison Canal. The original designers intended to create a dry and fertile land for farming and fruit groves. The original design for Titusville Farm called for a series of parallel east-west canals approximately .25 miles apart on quarter section lines. The canals ran parallel to the north and south boundaries of Titusville Farm from the east boundary approximately five miles to the St. Johns River to the west. The parties use the label EW1 in this proceeding to designate the first east-west canal north of SR 50. EW1.5 refers to the second east-west canal north of SR 50. EW2 refers to the Satterfield Road Canal in some exhibits and to an intervening canal in others. The original design for Titusville Farm also called for a series of parallel north-south manifold canals, approximately .25 miles apart on quarter section lines. Each canal ran parallel with the east and west boundaries of Titusville Farm from the north boundary approximately four miles to the Addison Canal at the south boundary. The parties use NS1 in this proceeding to designate the first north-south canal approximately .25 miles west of I-95. NS2 identifies the next north-south canal west of NS1. The numbering identification continues west in this proceeding to Hacienda Road. From 1911 through 1916, the original developers of Titusville Farm constructed some of the canals and farmed the area, predominantly with fruit groves. Sometime after 1916, the developers began selling off land to third-party purchasers. Subsequent purchasers altered, expanded, or abandoned the canals in and around their property. By 1943, the canals originally constructed in Titusville Farm remained in place but only one orange grove remained in the southeast corner of Titusville Farm near what is now the excavation site. Other farming within the contested area was sparse. The canals actually constructed by the developers of Titusville Farm continue to be depicted as existing systems on several current maps. They are also evidenced in drainage easements of record. 3.3(b) Drainage Easements The chain of title from Titusville Farm shows that purchasers took title subject to existing easements for "canals and/or ditches, if any." In 1971, when the United States Government established the Refuge, it took fee simple title to approximately 4,163 acres of former Titusville Farm land subject to: . . . permanent easement granted to Florida Power and Light Company . . . and subject to other rights outstanding for existing roads, lines, pipe lines, canals, and/or ditches, if any. (emphasis supplied) OR Book 1580, page 810, Brevard County. The Refuge The Refuge is located within the River Basin and within Titusville Farm. The vast majority of the Refuge is located inside the rectangular tract in the contested area. However, the Refuge also extends west of Hacienda Road to the St. Johns River and contains a small "out-parcel" north of Hacienda Road. Except for the out-parcel, the Refuge is more or less rectangular, bounded on the east by I-95, on the south by SR 50, on the north by Satterfield Road, and on the west by the St. Johns River. The distance between the east and west boundaries of the Refuge is approximately 3.75 miles. The distance between the north and south boundaries is approximately 1.5 miles. The Refuge contains approximately 4,163 acres and includes much of the area from I-95 west to Hacienda Road and from Satterfield Road south to SR 50. The federal government established the Refuge in 1971 to protect the endangered dusky seaside sparrow. The sparrow became extinct in 1990. After 1971, the Refuge became part of a national system for the conservation, management, and restoration of lands for fish, wildlife, plants, and their habitats. The federal government manages the Refuge under the Emergency Wetlands Restoration Act of 1986, which Congress reaffirmed in 1997, as a wetland to provide habitat protection for threatened and endangered species of special concern. The authorized methods for protecting wetlands include a National Wetlands Inventory that identifies wetlands nationally. The Refuge is a particularly important wetland in the sense that it is a high floodplain. A high floodplain is a type of wetland that is diminishing, especially in Florida. The federal government manages the Refuge as an ecosystem. The government attempts to mimic what happens naturally in the area with fire and water. It attempts to restore and maintain the sheet flow of water across natural marshes and to use fire as a means of maintaining marshes in their natural state. 3.4(a) Species of Special Concern The Refuge provides a habitat for species of special concern to both state and federal governments. The Refuge is one of the most important breeding areas in the country for the black rail. The black rail is a migratory species that uses the Refuge for nesting during the summer and for a winter habitat during the fall and winter. Several species use portions of the Refuge near the excavation site. The least bittern uses the area for feeding and nesting. The northern harrier is a migratory species that uses the area for feeding during the fall, winter, and early spring. The Refuge provides habitat for bald eagles, wood storks, otters, and alligators. It also provides habitat for: long-legged wading birds, such as great blue herons and great egrets; shorter-legged wading birds, such as little blue herons, snowy egrets, and little green herons; aerial diving species, such as terns and seagulls; submergent diving species, such as pie billed grebes, mergansers, and cormorants; and red-winged blackbirds and wrens that nest in emergent vegetation. 3.4(b) Wetland Communities The majority of the contested area contains five different wetland community types. There are open-water areas, such as Pond-1; shallow marsh, such as Marsh-1; wet prairies; hydric hammocks; and transitional shrub systems. Shallow marsh contains shallow water and emergent wetland vegetation. Water levels fluctuate throughout the year. The predominant vegetation is cattail and sawgrass. Wet prairie is slightly higher in elevation and somewhat drier than shallow marsh. The primary vegetation found in wet prairie is cord grass. Transitional shrub systems are areas in transition from uplands to wetlands or from wetlands to uplands. The vegetation in these areas typically is wax myrtle. 3.4(c) Pre-Excavation Site In January 1996, Mr. Charles Moehle complained to the District that the Hacienda Road project caused flooding on his property. District staff investigated the matter and concluded that the Hacienda Road project was not the cause of the flooding. The investigation included physical inspection and elevation readings for what became the excavation site in 1997. 3.4(c)(1) Physical Inspection Before the excavation in January 1997, there was no water connection from EW1 to NS1. NS1 and EW1 had been filled-in at various junctures with sediment and wash-outs from rain. Vegetation growth and aquatic vegetation further occluded NS1 and EW1. The east and west banks of NS1 from SR 50 north to Marsh-1 were similar and appeared undisturbed. The west bank of NS1 disappeared at the point where NS1 intersected Marsh-1. Both banks of NS1 were very low through Marsh-1. Marsh-1 had standing water in it. The predominant vegetation was spartina baderi, a marsh grass found in wetland areas ("spartina"). Approximately 500 feet of NS1 between Marsh-1 and EW1 was dry and shallow. This portion of NS1 was only one-half to one-foot deep. It was more characteristic of a swale than a ditch and was heavily vegetated with spartina. The bottom elevation of a portion of NS1 between EW1 and Marsh-1 was approximately 2.5 feet higher than the remainder of NS1. This high spot functioned as an elevation control within NS1. EW1 east of NS1 appeared very similar to that portion of NS1 north of Marsh-1. It was dry and vegetated with spartina. There was no water connection between NS1 and EW1 so that Pond-1 did not routinely drain west through EW1. EW1 also contained a high spot just west of NS1. Pond-1 was a healthy open-water community surrounded by green cattails. Pond-1 was deeper than five feet in some areas. A berm on the west side of NS1 north of Marsh-1 was one to two feet high and three to five feet wide. It served as a fire-break trail and resembled a road. The berm was slightly higher south of Marsh-1 and heavily vegetated with cabbage palms and other vegetation near the intersection of NS1 and SR 50. 3.4(c)(2) Elevations On February 28, 1996, in response to complaints from Modern, District staff took spot readings of bottom elevations within NS1 from Marsh-1 north to EW1 and within EW1 east of NS1. They also took water elevation readings in Pond-1 and at the intersection of NS1 and SR 50. The elevation readings revealed respective control elevations in NS1 and EW1 of 12.9 and 12.79 feet. Other elevations in NS1 were 12.26 feet at a point just north of Marsh-1, 12.9 and 12.7 feet at two points south of EW1, and 12.9 feet at the intersection of NS1 and EW1. The bottom elevation in EW1 varied from 12.4 to 12.79 feet. District staff also reviewed bottom elevation readings in various pre-excavation surveys made between 1995 and January 1997 and referred to by the parties as the Lowe's Report, the Cracker-Barrel survey, the McCrone survey, and the Titusville survey. The McCrone survey recorded bottom elevations for NS1 which were consistent with those taken by District staff. However, elevations varied by as much as a foot for EW1. Water elevation readings varied with seasonal water conditions and other factors. The McCrone survey found respective control elevations in NS1 and EW1 of 12.7 and 11.7 feet. The bottom elevation for NS1 was 12.7 feet at a point just south of EW1. Bottom elevations for EW1 ranged from 10.5 to 11.7 feet. The investigation by the District established respective high spots in NS1 and EW1 at 12.9 and 12.79 feet. The Titusville survey recorded a water elevation of 10.54 feet in NS1 at SR 50. The water elevation in EW1 east and west of the I-95 culvert was 12.55 feet. The variation in water elevations of 12.55 feet in EW1 at I-95 and 10.54 feet in NS1 at SR 50 suggest high spots in EW1 or NS1. The high spots prevent water from flowing from the culvert at I-95 west through EW1 to NS1 and south through NS1 to SR 50. 3.4(c)(3) Topography A slight ridge exists south of EW1 and supports a more shrubby type of vegetation consistent with transitional wetlands. The topography north of EW1 is lower and characteristic of a deep marsh system. The bottom elevations in NS1 north of EW1 are lower than bottom elevations elsewhere in NS1 and are consistent with surrounding topography. The topography surrounding NS1 south of EW1 is higher and provides a greater source of sediment than does the lower topography north of EW1. More sediment erodes into NS1 south of EW1 because there is more sediment south of EW1. The portion of NS1 north of EW1 is in a marsh and under water most of the year. The submerged topography north of EW1 provides less opportunity for material to erode into NS1 north of EW1. 3.5 Hacienda Road Project The Department widened SR 50 between 1988 and 1991 by adding two east-bound lanes on the south side of SR 50. The District required the Department to obtain a permit for the widening of SR 50 and to offset the adverse impacts to wetlands through a plan of mitigation. The Wildlife Service actually performed the mitigation work for the Department and completed the mitigation plan in 1991. West of Hacienda Road, the Wildlife Service placed fill from adjacent berms in the IRCC, EW1, and EW1.5, which had pre- mitigation depths at that location ranging from 1.5 to 2.0 feet. The Wildlife Service planted spartina on the fill. The Wildlife Service also replaced six 30-inch culverts under Hacienda Road with nine 36-inch culverts. The new culverts were located at the same elevation as the elevation of the pre-mitigation culverts. The Wildlife Service placed riser boards in the new culverts under Hacienda Road. Riser boards are used to facilitate the cleaning of culverts. However, they can also raise the water level above which water must rise before it can pass through the culverts. Respondents contend that the fill west of Hacienda Road eliminated floodplain storage. They also claim the riser boards in the new culverts under Hacienda Road cause water to back-up in the contested area by preventing flow from the contested area through the new culverts into the marsh west of Hacienda Road. 3.5(a) Floodplain Storage The Hacienda Road project did not decrease floodplain storage capacity west of Hacienda Road. The project used only fill from existing berms and did not bring in additional fill from outside the marsh. The fill did not reduce floodwater capacity of the IRCC, EW1, and EW1.5. Their capacity before the mitigation had already been reduced by groundwater from the high groundwater table close to the St. Johns River. The fill displaced high groundwater in the IRCC, EW1, and EW1.5, rather than floodwater capacity. The fill taken from existing berms reduced the size of the berms that had previously displaced floodwater capacity. 3.5(b) Water-flow Neither the mitigation west of Hacienda Road, the new culverts under Hacienda Road, nor the riser boards in the new culverts caused water to back-up and flood Respondents' property. The Hacienda Road project does not prevent water-flow during either low-flow or high-flow conditions. 3.5(b)(1) Low-flow A low-flow condition occurs when water rises above the control elevation that is impeding its flow. The water stages-up in lower areas until it flows over the high spot that operates as a control elevation. During low-flow conditions, neither the mitigation west of Hacienda Road, the culverts, nor the riser boards in the culverts control the flow of water from I-95 west to Hacienda Road. Rather, bottom elevations in the canals, or ditches, east of Hacienda Road ("upstream") control the flow of water from I-95 west to Hacienda Road. Water that does not exceed the control elevations will pond in the adjacent wetlands and not reach Hacienda Road. Water that ponds behind control elevations during low- flow conditions is also influenced by two basins and a ridge in the contested area. One basin is north of SR 50 and south of EW1, and the other basin is north of EW1. Water from the former basin flows south while water from the latter basin flows toward Hacienda Road. The water elevation at Hacienda Road is approximately 11.0 feet. High spots in the canals, or ditches, upstream from Hacienda Road range from 12.1 feet to 13.3 feet. A control elevation of 12.6 feet exists in EW1 east of Hacienda Road. Water stands behind the high spot at 12.3 feet. Closer to I-95, the bottom elevation in EW1 ranges from 12.1 to 12.6 feet and effectively controls water elevation at 12.0 feet. Water in EW1 west of I-95 and east of Hacienda Road must rise to an elevation of 12.6 feet before it can flow west toward Hacienda Road. Water in EW1.5 near I-95 has an elevation of 13.3 feet. Water in EW1.5 must rise above that elevation before it can flow west toward Hacienda Road. Water in EW-2 at I-95 is above 13.0 feet. The bottom elevations and water elevations measured by District staff in the contested area between Hacienda Road and I- 95 are consistent with the I-95 construction plans and the Lowe's Drainage Report used for the construction of the Lowe's store at the intersection of SR 50 and SR 405. The I-95 plans show a design high-water elevation of 14.0 feet for the culvert where EW1 crosses I-95. The Lowe's Drainage Report shows that the 100- year, 24-hour storm event flood elevation east of I-95 is 14.0 feet. In addition, a pre-construction survey for the Lowe's store shows elevations in the wetlands north of EW1 to be approximately 13.0 feet. 3.5(b)(2) High-flow A high-flow condition occurs when there is a storm event that creates significant run-off. The run-off overwhelms the high spots that operate as control elevations during low-flow conditions. Run-off is controlled by other factors including culverts such as those at Hacienda Road. During high-flow conditions, the culverts at Hacienda Road are the controlling factors for the flow of water in the contested area from I-95 west to Hacienda Road. The high-flow conveyance capacity for the new culverts is equal to or greater than that of the old culverts. The replacement culverts do not cause water to back-up in the contested area during high-flow conditions. Riser boards in the new culverts under Hacienda Road do not raise elevation levels to a point that causes water to flood Respondents' property during high-flow conditions. 3.5(c) Collateral Improvements During either low-flow or high-flow conditions, the possibility that the Hacienda Road project could cause water to back-up in the contested area has been significantly reduced by improvements in drainage capacity to nearby canals, or ditches. The Department improved several north-south canals, or ditches. Brevard County improved the capacity of the IRCC. When the Department widened SR 50, the Department increased the capacity of NS3 and NS4, where each crosses under SR 50, by replacing old culverts with new culverts at the same invert elevation. The Department replaced one 24-inch culvert in NS3 with an elliptical pipe with the effective capacity of a 36-inch pipe. The Department replaced one 24-inch culvert in NS4 with two 18-inch culverts. The Department also replaced the box culvert in NS1 with a culvert of the same size and invert elevation. Brevard County improved the capacity of the IRCC in several ways. The county cleaned out the canal, installed a 36-inch elliptical culvert under Hacienda Road, and replaced a driveway that had previously blocked the canal with a 36-inch culvert. The Excavation Modern, through its President, Mr. Charles Moehle, caused and directed the excavation of NS1 and EW1. In December 1996, Mr. Charles Moehle contracted with Total Site Development, Inc. ("Total Site") to perform the excavation. Modern also supervised the excavation. Total Site is a Florida corporation wholly owned by Mr. Daniel McConnell and Mr. Randy McConnell, his brother. Both men, through their attorney, obtained immunity from criminal prosecution and testified at the administrative hearing. In 1996, Total Site was a subcontractor in the construction of the Cracker Barrel near the intersection of I-95 and SR 50. The superintendent for the Cracker Barrel project gave Mr. Daniel McConnell the telephone number of Mr. Charles Moehle. After several telephone conversations, Mr. McConnell met with Mr. Moehle. The two men walked the length of NS1 from SR 50 north just past EW1. Mr. Moehle directed Mr. McConnell where to excavate NS1 and EW1, how wide and deep to excavate each, and where to place the spoil material. Mr. Moehle showed Mr. McConnell a paper which Mr. Moehle represented to be a permit to perform the excavation. However, neither Mr. Moehle nor Modern ever applied for or obtained a permit to perform the excavation. The District never received an application or issued a permit for the excavation. On January 10, 1997, Mr. McConnell began excavating NS1 and EW1 and completed the excavation in 2.5 days. Mr. McConnell began work on a Friday, worked Saturday, and completed the work on Monday, January 13, 1997. Mr. McConnell excavated NS1 and EW1 in accordance with the instructions of Mr. Moehle. Mr. McConnell began the excavation at SR 50 and worked north in NS1 approximately 2,687 feet to a point about 22 feet north of EW1. Mr. McConnell also excavated EW1 approximately 30 feet east of NS1. Mr. McConnell placed the spoil material on the west bank of NS1 and did not move the spoil material thereafter. When Mr. McConnell reached the intersection of NS1 and EW1, he excavated EW1 sufficiently to complete a water connection from EW1 to NS1. He placed the spoil material on the banks surrounding the intersection of EW1 and NS1 and did not move the spoil material thereafter. During the excavation, Mr. Moehle frequently visited the excavation site, observed the work, and provided instructions to Mr. McConnell. Mr. Moehle visited the site approximately once or twice a day during the excavation to check on the progress of the work. On a few occasions, Mr. Moehle instructed Mr. McConnell to dig deeper. Mr. Moehle paid Total Site $2,500 when Mr. McConnell completed the excavation on January 13, 1997. Mr. Moehle paid in cash. Post-excavation Site After the excavation, water flowed from EW1 to NS1. NS1 was approximately 10 feet wider and approximately 3-4 feet deeper. NS1 was open with water flowing through it from EW1 south through Marsh-1 to SR 50. The bottom elevation for NS1 was 7.5 and 9.5 feet at points where District staff and the McCrone survey previously found bottom elevations of 12.7 and 12.9 feet. After the excavation, the water elevation at the intersection of NS1 and SR 50 was 12.09 feet. The pre-excavation water level had been 10.54 feet. After the excavation, a large spoil pile existed on the west bank of NS1. The spoil pile filled approximately one- half acre of wetlands. The height of the spoil pile ranged from three to eight feet, with the highest points at the intersection of NS1 and EW1. The spoil pile just north of EW1 had been flattened by the weight of equipment used for the excavation. The width of the spoil pile at its base ranged from 20 to 35 feet for the entire length of NS1. The spoil material was primarily white, sandy material without much vegetation in it. The lack of organic material in the spoil pile indicates that the excavation extended beyond the depth necessary to remove surface vegetation. Emergency The excavation of NS1 and EW1 by Modern in January 1997 created an emergency within the meaning of Section 373.119(2). The excavation created short-term effects that adversely impacted adjacent wetlands and required immediate action to protect the health of animals, fish, or aquatic life; and recreational or other reasonable uses. If left uncorrected, the excavation would have created long-term effects that would have had additional adverse impacts. Short-Term Effect The excavation created numerous short-term effects that adversely impacted wetlands. Short-term effects included a reduction in the water level of approximately 600 to 800 acres of wetlands, a vegetation and fish kill, an alteration of the existing hydroperiod for the affected area, and an increase in the water level south of the intersection of NS1 and SR 50. 6.1(a) Water Levels The excavation lowered the water level in approximately 600 to 800 acres of wetlands. The reduction in the control elevation in NS1 from 12.9 feet to 10.5 feet increased water flow capacity in NS1 and EW1 by 15 to 25 cubic feet per second. The increased water flow lowered water levels in the surrounding wetland from one to two feet. When the excavation was completed, Mr. Randy McConnell was standing on the head-wall at SR 50. He saw a three or four- foot wave flow south down NS1 toward him and hit the head-wall before passing through the culvert south to the Addison Canal. Sometime after the excavation, a substantial water flow out of NS1 caused water levels to drop in the adjacent area, including the Refuge. Pond-1 drained one to two feet. 6.1(b) Vegetation and Fish The excavation killed vegetation in the affected area. The cattail marsh adjacent to Pond-1 became stressed, turned brown, and began dying. The dying cattails consumed oxygen in the open water in Pond-1. The excavation killed fish in the affected area. In March 1997, a fish kill occurred in Pond-1. Wildlife Service personnel observed approximately 75 to 100 dead fish. Other dead fish were likely consumed by other species. The fish kill resulted from oxygen depletion caused by the drainage of Pond-1, dying vegetation, and the concentration of animal populations in the Pond-1 community. 6.1(c) Hydroperiod The excavation altered the natural hydroperiod for the affected area. The hydroperiod for a wetland is the natural fluctuation in water levels that result from dry periods followed by periods of recovery. Water levels drop and are replenished by rain. Precipitation in the Titusville area averages approximately 54 inches in a normal year. Evaporation in Florida for a wetland such as the Refuge is about 48 to 50 inches a year. In a normal year, rainfall and evapo-transpiration would be approximately equal. There are wet and dry seasons for a wetland within a normal year. Approximately 60 percent, or more, of the annual rainfall in a normal year in peninsular Florida occurs in the months of June through October. There are also wet and dry years within longer periods. In the Titusville area, annual rainfall ranges from 35 inches to 80 inches. The adverse impact of any excavation is least during wet months in a normal year and during wet years. During wet conditions, when rainfall generally exceeds evapo-transpiration, the drainage effect of excavation is overwhelmed by rainfall. The adverse impact of any excavation is greatest during dry months in a normal year and during dry years. During dry conditions, the drainage effect of excavation lowers water levels lower than they otherwise would be by lowering elevation controls. The excavation of NS1 and EW1 occurred during dry months in a normal hydroperiod in January 1997. 6.1(d) Stop-loss Ancillaries The adverse impact caused by the excavation was limited by two ancillary factors. One factor was the reduced function of the IRCC, which runs parallel to SR 50, at the time of the excavation. The other factor was the limitation placed on the drainage capacity of NS1 by two culverts through which NS1 must flow south of SR 50. At the time of the excavation, the IRCC was not functioning to full capacity. Plugs in a driveway crossing SR 50 and fill from the Hacienda Road project contributed to the dysfunction. The capacity of NS1 to drain water approximately 1.5 miles south to the Addison Canal was limited by two 18-inch culverts located approximately 2,000 feet south of SR 50. The flow rates for the two culverts are approximately 15 to 25 cubic feet per second, depending on the difference in water levels across the culverts. The dysfunction of the IRCC and the limit imposed by the two culverts combined to prevent more egregious impacts from the excavation of NS1. However, the same limitations increased water in the area south of SR 50 and north of the two culverts. After the excavation, the water level at the intersection of NS1 and SR 50 increased by approximately two feet. The increased water level exacerbated flooding problems in the retention ponds and parking lot of the Cracker Barrel. Long-Term Effect The short-term adverse impacts of the excavation, if left uncorrected, would have had a cumulative effect over several years and would have caused separate long-term adverse impacts. Drainage caused by the excavation differs from natural fluctuations in the hydroperiod. An uncorrected excavation becomes a permanent feature that continues to alter the hydroperiod by permanently lowering water levels and shortening the time that water stands on the surface and saturates the soil. Once the hydroperiod is changed, the change affects the structural integrity of the entire system. Changes to the hydroperiod result in adverse impacts to vegetation, predator- prey relationships, and the suitability of the habitat for a large number of species. Changes in the hydroperiod caused by reduced water levels can change wet prairie area to a shrubby type vegetation dominated by wax myrtle. Wax myrtle can affect the amount and rate of run-off of water and further dry-out the area over time. It can reduce emergent vegetation used as nesting sites for species like red-winged blackbirds and wrens. A reduction in open water area can reduce the habitat for fish and the type of invertebrates that provide food sources for fish. It can also reduce the suitability of the habitat for other species dependent on fish as a food source. A change in the hydroperiod caused by a draw-down of one to two feet can adversely impact various types of wading birds including little blue herons, snowy egrets, little green herons, great blue herons, and great egrets. It can adversely impact other birds such as bald eagles, wood storks, black rails, least bitterns, terns, seagulls, pie billed grebes, mergansers, cormorants, red winged blackbirds, and wrens. An altered hydroperiod can also adversely impact larger animals such as otters and alligators. It is possible to restore habitat after a draw-down. However, such a restoration does not prevent adverse impacts on the health of fish and wildlife during the hiatus that precedes the restoration. District Investigation On March 31, 1997, the District received a letter from the Wildlife Service dated March 27, 1997. The Wildlife Service expressed concern that rapid daily drainage caused by the excavation of NS1 and EW1 was creating adverse impacts on fish and wildlife in the Refuge. The District conducted a sufficient and appropriate investigation. District staff investigated the extent of the excavation and its impact on surrounding wetlands. Neither the investigation nor the Emergency Order was rendered insufficient or inappropriate by the refusal of the District: to wait until 1998 when it could more fully ascertain the effects of the excavation based on whether annual rainfall made 1997 a dry, normal, or wet year; or to re-investigate the effects of the Hacienda Road project on Respondents' properties. The excavation occurred during the dry season of the normal hydroperiod in January 1997. The District reasonably assumed that 1997 was going to be a normal year and could not delay appropriate action until 1998 to see if 1997 turned out to be a wet year. Sometime in 1998, the District determined that 1997 was an extremely wet year. However, the subsequent rainfall in 1997 could not have been reasonably anticipated by District staff and did not eviscerate a reasonable basis for either the Emergency Order on May 14, 1997, or the corrective action taken. An uncorrected excavation would have had long-term cumulative impacts on wetlands irrespective of annual rainfall in 1997. The District investigation leading up to the Emergency Order properly excluded another investigation of the effects of the Hacienda Road project. Such an investigation would have duplicated the investigation conducted in the preceding year. Even if the District had conducted another investigation, the weight of the evidence shows that the results of such an investigation would not have altered the reasonableness of the Emergency Order or the corrective action that ensued. At the time of the Emergency Order, the District reasonably concluded that the excavation caused immediate short- term effects that had significant adverse impacts on water levels in approximately 300 acres of wetlands, on fish and vegetation, and on wildlife in the refuge. Later, the District found that the excavation actually affected 600 to 800 acres of wetlands. Emergency Order Pursuant to Section 373.119(2), the District issued an Emergency Order on May 14, 1997. The Emergency Order authorized the Wildlife Service to construct earthen weirs in NS1 and EW1 to prevent further drainage in the River Basin and the Refuge. The findings and conclusions in the Emergency Order are sufficient and correct. The weirs are reasonably necessary to protect the health of fish, animals, and aquatic life in the River Basin, management objectives and reasonable uses of property in the River Basin, and other reasonable uses of property within the River Basin. Pursuant to the Emergency Order, the Wildlife Service constructed two earthen weirs in NS1 and EW1. The Wildlife Service constructed: an earthen weir in NS1 at a crest elevation of 12.7 feet; and an earthen weir in EW1 at a crest elevation of 11.7 feet. The weir in NS1 is located at the southernmost end of NS1 inside the Refuge. The weir in EW1 is inside the Refuge at the west end of EW1 just east of the eastern edge of NS1. The Wildlife Service used spoil material from NS1 and EW1 to construct the weirs. The weirs in NS1 and EW1 span the width of NS1 and EW1 and are approximately five feet from front to back at the height of each weir. The north-south sides of the weir in NS1 and the east-west sides of the weir in EW1 have a 4:1 slope. The top sides of each weir are stabilized with concrete bags. Neither of the weirs caused flooding or other adverse impacts on nearby property. Both weirs in NS1 and EW1 have the same effect on water levels, up and downstream, as the high- elevation areas had in NS1 and EW1 prior to the excavation. The weir in NS1 re-creates the two-foot head difference in NS1 that existed prior to excavation. No county rights-of-way exist in the location of NS1 and EW1. Brevard County never accepted the right-of-way adjacent to NS1 and EW1. Permitting Requirements Pursuant to Sections 373.413 and 373.416, the District requires an environmental resource permit (a "permit") to assure that activities such as construction, alteration, maintenance, or operation, will not be harmful to the water resources of the state and will be consistent with the overall objectives of the District. A permit is required for such activities unless a particular activity qualifies for an exemption authorized by applicable statutes and rules. Stormwater Management System or Works The permitting provisions in Sections 373.413 and 373.416, in relevant part, apply to the excavation of NS1, EW1, and the larger system of which each is a part (the "larger system") only if NS1, EW1, and the larger system satisfy the definitions of either a "stormwater management system," "works," or a "surface water management system." Each term is defined by statute or rule. The definitions of a "stormwater management system" in Section 373.403(10) and in Rule 40C-4.021(25) are substantially the same. NS1, EW1, and the larger system are each: . . . designed and constructed or implemented to control discharges . . . necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, [or] inhibit . . . water to prevent or reduce flooding, overdrainage, environmental degradation . . . or otherwise affect the quantity and quality of discharges from the system. Section 373.403(10). NS1, EW1, and the larger system are "works" within the meaning of Section 373.403(5) and Rule 40C-4.021(31). NS1 and EW1, and the larger system, are each: . . . artificial structures, including . . . ditches, canals, conduits, channels . . . and other construction that connects to, draws water from, drains water into . . . waters in the state. Section 373.403(5). NS1, EW1, and the larger system are each a "surface water management system" defined in Rule 40C-4.021(26). Each is a system which, in relevant part, is: . . . a stormwater management system . . . or works, or any combination thereof. . . . [and] include areas of dredging or filling . . . . Rule 40C-4.021(26). The definition of a "surface water management system" includes elements not found in the definition of either a "stormwater management system" or "works." The broader scope of a surface water management system creates the potential that the permit requirement in Rule 40C-4.041(2)(b) may require a permit for elements not subject to Sections 373.413 and 373.416. As applied to the facts in this proceeding, the permit requirement in Rule 40C-4.041(2)(b) for the construction, alteration, maintenance, or operation of a "surface water management system" or "works" does not exceed the statutory authority in Sections 373.413 and 373.416. NS1 and EW1, and the larger system fall within the definition of a stormwater management system in Section 473.403(10) and Rule 40C-4.021(25) and within the definition of "works" in Section 373.403(5) and Rule 40C-4.021(31). Thresholds The requirement for a permit in Rule 40C-4.041(2)(b) does not apply if the construction, alteration, maintenance, or operation of a surface water management system does not meet one or more threshold requirements. NS1 and EW1 meet two threshold requirements found in Rule 40C-4.041(2)(b) 2 and 8. Rule 40C-4.041(2)(b) 2 and 8 require a permit for the construction, alteration, maintenance, or operation of a "surface water management system" if the system either: 2. Serves a project with a total land area equal to or exceeding forty acres; or * * * Is wholly or partially located in, on, or over any wetland or other surface water. NS1 and EW1 each serve a project with a total land area equal to or exceeding forty acres. NS1 and EW1 each are located wholly or partially in "wetlands" or other "surface water" defined, respectively, in Rule 40C-4.021(30) and Section 373.019(16). The excavation work placed spoil material in wetlands. The larger system also exceeds each of the threshold requirements in Rule 40C-4.041(2)(b) 2 and 8. Maintenance None of the parties claim that the excavation of NS1 and EW1 in 1997 was "construction" for which a permit is required in Section 373.413. The District alleges in paragraphs 24-25 and 31-33 of the Administrative Complaint that the excavation satisfies the definitions of maintenance, alteration, or operation. The term "maintenance" is defined in Section 373.403(8) and Rule 40C-4.041(20), in relevant part, to mean: . . . remedial work of a nature as may affect the safety of any . . . works . . . but excludes routine custodial maintenance. (emphasis supplied) Section 373.403(8). In order for the excavation of NS1 and EW1 to be maintenance, it had to be, inter alia, "remedial work" that was not "routine custodial maintenance." 8.3(a) Remedial Work The term "remedial" is not defined by applicable statutes or rules. The term must be defined by its common and ordinary meaning. Work is "remedial" if it rectifies or corrects a fault or error. The excavation of NS1 and EW1 was remedial. It rectified and corrected a fault or error caused by occlusions from high spots, or elevation controls, vegetation, and other causes. The high spots, in particular, reduced flow capacity in low-flow conditions. There is no evidence that the excavation of NS1 and EW1 in January 1997 was of a nature that affected the safety of NS1 and EW1. The lack of such evidence, however, does not preclude a finding that the excavation was remedial work. Section 373.403(8) and Rule 40C-4.021(20) provide that work is remedial if it is of a nature that "may" affect the safety of works such as NS1 and EW1. The statute and rule do not define remedial work to require that work "shall" affect the safety of NS1 and EW1 in order for the work to be remedial. Thus, work is remedial if it is of a nature that affects either the function or safety of NS1 and EW1. 8.3(b) Routine Custodial Maintenance If the excavation of NS1 and EW1 was routine custodial maintenance, it was excluded from the definition of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). If the excavation was not defined as "maintenance," it was neither "maintenance" that is subject to the maintenance permitting requirements nor "maintenance" that must satisfy the requirements for a "maintenance" exemption. The terms "routine" and "custodial" are not defined by applicable statutes or rules. They must be defined by their common and ordinary meanings. 8.3(b)(1) Routine The excavation of NS1 and EW1 was not routine. The excavation was not incident to work performed on a regular basis, according to a prescribed and detailed course of action, a standard procedure, or a set of customary activities. The excavation was not part of a course of action performed on a continuous or periodic basis. Any excavation that occurred prior to 1997 occurred only sporadically or episodically and not pursuant to any discernible interval or course of action. No excavation in prior years occurred at the level or to the extent of the excavation in 1997. From 1951 through 1996, neither NS1 nor EW1 were excavated in and around the excavation site. Experts examined aerial photographs taken between 1943 and 1997 for evidence of changes in water flow, vegetation, canal definition, and new spoil material that would indicate the occurrence of maintenance in and around the excavation site. Experts examined aerial photographs taken in 1958, 1969, 1972, 1975, 1979, 1980, 1984, 1986, 1989, 1994, and 1995. In 1943, there was a small interruption of water flow in NS1. The width of NS1 ranged from 10 to 14 feet. In 1951, the width of NS1 ranged from 16 to 20 feet. In 1958, there was some water in NS1 south of EW1. However, the same area in NS1 was predominantly covered with dirt and free-floating wetland vegetation. In 1979, intermittent water appeared in NS1 south of EW1. In 1980, water flowed freely in NS1 north of EW1, but no water flowed in NS1 south of EW1. In 1983, much of the definition of NS1 was lost north of Marsh-1. Water was intermittent. In 1984, the same area was seriously occluded. About 75-80 percent of the capacity of NS1 had been lost. In 1986, NS1 south of EW1 and north of Marsh-1 was losing definition. Sometime before 1993, some of the vegetation was cleaned out of NS1 south of Marsh-1. In 1986, a ditch appears next to EW1 from NS1 east to Pond-1. The ditch is not man-made because it is irregular and does not flow in a straight line. The ditch leading out of Pond-1 next to EW1 appears in the 1986 aerial photographs because a controlled fire in 1984 burned much of the free-floating vegetation. In 1989, the ditch next to EW1 was still present but was starting to become overgrown with vegetation. The vegetation included cattails west of Pond-1. In 1994, vegetation had been cleaned out of NS1 from a point approximately 400 feet south of EW1 to SR 50, but no water was present in that part of NS1. In 1994, the ditch next to EW1 contained cattails and some shallow marsh species. 8.3(b)(2) Custodial The excavation of NS1 and EW1 in January 1997 was not custodial. The excavation exceeded the level of work that was reasonably necessary to preserve, or care for, the condition or status of NS1 and EW1 immediately before the excavation. The spoil material next to NS1 and EW1 after the excavation in January 1997 was not consistent with custodial care. The spoil material differed in quantity and content from that which would evidence custodial care. The large quantity of spoil material produced by the excavation in 1997 far exceeded any reasonable amount that would evidence custodial care. The spoil material consisted primarily of sandy soil. The spoil material from custodial care would have consisted primarily of vegetation and possibly some organic soils that would have accumulated at or just beneath the bottom of NS1 and EW1. Alteration The term "alter" is defined in Section 373.403(7) and Rule 40C-4.041(2), in relevant part, as meaning: . . . to extend . . . works beyond maintenance in its original condition, including changes which may increase . . . the flow or storage of surface water which may affect the safety of . . . such . . . works. Section 373.403(7); 40C-4.021(2). 8.4(a) Original Condition Respondents contend that the term "original condition" means the condition prescribed in the original design specifications for NS1 and EW1 before 1916. If the excavation in 1997 was not so extensive that it exceeded the original design specifications for NS1 and EW1, Respondents argue that the excavation was not an "alteration" of NS1 and EW1. Respondents are correct. The common and ordinary meaning of the term "original" means first in time. The legislature and the District consistently use the term "original design specifications" as a requirement in Section 403.813(2)(f) and (g) and Rules 40C-4.051(11)(b) and 40C-4.051(11)(c). Original design specifications offer the most reliable standard for defining the "original condition" of NS1 and EW1 and should be used for that purpose whenever the original design specifications are established by the evidence of record. If the evidence is insufficient to establish the original design specifications, however, it does not follow that Respondents are free to excavate NS1 and EW2 to any extent. An "alteration" of NS1 and EW1 occurs in the absence of original design specifications if the excavation exceeds the "original condition" of the NS1 and EW1 defined by the weight of the evidence. The literal meaning of the terms "original design specifications" and "original condition" are not coterminous. The former term conveys a relatively specific connotation. The latter term is broad enough to be defined by means other than evidence of the "original design specifications" whenever the "original design specifications" cannot be established. The District must show that the excavation in 1997 satisfied the essential requirements of an "alteration" in Section 373.403(7) and Rule 40C-4.021(2). The District must prove the "original condition" of NS1 and EW1 by evidence of the "original design specifications" or, in the absence of such evidence, by evidence of "original condition" before the excavation. 8.4(a)(1) Original Design Specifications The parties submitted considerable evidence in an attempt to show that the "original condition" of NS1 and EW1 was evidenced, alternatively, by original design specifications or by other evidence, including evidence of the condition of NS1 and EW1 immediately before the excavation in January 1997. The evidence included data and other information from: approximately 78 aerial photographs taken in 1943, 1951, 1958, 1969, 1972, 1979, 1980, 1983, 1984, 1986, 1989, 1993-1995, and 1997; construction plans for I-95, from the 1960s, and for the widening of SR 50 by the Department; various reports and surveys, including those identified in this proceeding as the Cofield, Powell, McCrone, and Titusville surveys or reports; the results of investigations or surveys conducted by the District in 1996 and 1997; official maps, including the recorded plat of Titusville Farm, the U.S. geologic survey quadrangle map, the map used by the Wildlife Service, the Department's drainage basin map, and the District's basin map; the record chain of title that includes recorded drainage easements; approximately 51 pages of local newspaper articles from the early 1900s describing the work at Titusville Farm; and expert testimony based on the examination of the evidence of record. The evidence does not establish the original design specifications for NS1 and EW1 or the larger system. The evidence does not establish invert elevation; bottom width; side slopes; top width; ditch bottom profile or slope; hydraulic capacity; or hydrologic function. From the early 1900s through the 1970s, various plans proposed the construction of ditches that would discharge water into the Indian River approximately three miles east of I-95. The lower elevation of the River presented an efficient outfall for drainage. However, neither NS1, EW1, nor the larger system contains an outfall to the Indian River. Survey information is not available for the original construction of NS1, EW1, and the larger system. Information contained in more recent surveys does not show that NS1 and EW1 were originally designed to a depth of five to seven feet as Respondents contend. Newspaper articles from the early 1900s do not provide sufficient detail to establish the original design specifications for NS1, EW1, and the larger system. Most of the articles refer to a system constructed to the southeast of what is now the intersection of I-95 and SR 50. A few references describe canals that are four to five feet deep. Old newspaper articles show photographs of dredging equipment constructing a canal from Bird Lake to the Indian River. Bird Lake is southeast of I-95 and SR 50. The only evidence of the "original condition" of NS1 and EW1 before the excavation is evidence of the condition of each on the date of a particular piece of evidence. The evidence shows that the "original condition" of NS1 and EW1 between 1951 and the date of excavation was seriously degraded from the condition to which they were restored after the excavation. 8.4(a)(2) Condition Before Alteration After 1951, the canals constructed within that portion of Titusville Farm that is in the contested area lost their original design function. Due to a lack of maintenance and to occlusions through vegetation growth, aquatic vegetation, and sediment, the canals deteriorated over time. Since 1966, the canals have exhibited only sporadic signs of maintenance. Little, if any, new spoil material has been present. Water flow has been intermittent and insignificant. The increased growth in vegetation is consistent with decreased water flow and itself further impedes water flow. Since 1951, the canals in the rectangular parcel have filled with sediment in random locations, producing irregular ditch bottom elevations. High spots in bottom depths create control elevations that impede the flow of water during low-flow conditions west toward the St. Johns River and south toward the Addison Canal. Numerous high spots in bottom elevations create control elevations that impede water flow. The construction plans for I-95 reveal bottom depths in the rectangular parcel that vary from one to two feet. The construction plans for Hacienda Road show bottom depths ranging from 1.5 to 2.0 feet. Other surveys show natural ground elevations of 11.0 to 11.1 feet and bottom elevations of 8.5 to 9.8 feet resulting in bottom depths ranging from 1.3 to 2.5 feet. A survey conducted by the District in 1997 of high spots in bottom elevations between Hacienda Road and I-95 is consistent with the findings of previous surveys. Large sections of east-west ditches are high and reduce the flow of water west to the St. Johns River. Those canals constructed in Titusville Farm which are located in the smaller parcel east of I-95 have experienced a degradation in function similar to that experienced by the canals in the rectangular parcel. In addition, many of the existing drainage ditches discharge into swamps instead of their intended drainage outlets. During periods of high water, the canals constructed in Titusville Farm and now located in the contested area overflow and flood. During such periods, the natural sheet flow of water occurs from east to west and from north to south. 8.4(b) Safety Section 373.403(7) and Rule 40C-4.021(2) provide that work is an alteration if it includes changes which "may" affect the safety of works such as NS1 and EW1. The statute and rule do not say that work "shall" affect the safety of NS1 and EW1 before the work can be considered to be an alteration. Thus, work can be an alteration if it includes changes which affect either the function or safety of NS1 and EW1. The excavation of NS1 and EW1 affected their function. Operation The term "operation" is not defined in applicable statutes or rules and must be defined by its common and ordinary meaning. The term "operation" has two meanings. One meaning for an "operation" is a process or series of acts performed to effect a certain purpose or result, such as a surgical procedure. This definition creates the potential that the excavation of NS1 and EW1 will qualify simultaneously as an operation, maintenance, and an alteration. An "operation" would be neither maintenance nor an alteration only if: the operation was a process or series of acts, other than remedial work; was performed to effect a purpose or result other than the extension of works beyond maintenance in their original condition; and was not routine custodial maintenance. The second definition of "operation" is more easily distinguished from a single event that may also qualify as "maintenance" or "alteration." Under the second definition, an "operation" means an "act," process, or "way of operating" over time. Under this definition, a person can engage in the operation of a stormwater management system, or works, after completing a single event that is defined as either "maintenance" or "alteration." NS1 and EW1 were operating at some level of function and capacity before their excavation in 1997. Section 373.416 could not reasonably be construed as requiring Modern to obtain a permit for allowing NS1 and EW1 to continue their existing operation when Modern became the owner of the property. Modern would have committed no "act" which brought about a "way of operating" NS1 and EW1 that did not already exist at the time of acquisition. The excavation of NS1 and EW1 was an "act" by Modern that brought about a new and different "way of operating" NS1 and EW1. The new "way of operating" would not have occurred but for the act of Modern. After the excavation, Modern operated NS1 and EW1, albeit passively, in a way that Modern did not operate NS1 and EW1 before the excavation. Under either definition, the excavation in January 1997 involved the operation of NS1 and EW1. Pursuant to Section 373.416, the District requires a permit for either type of operation. Integrated Transaction The excavation of NS1 and EW1 in January 1997 consisted of three separate steps integrated into a single transaction referred to by the parties as excavation. The first step was maintenance; the second step was alteration; and the third step involved a new operation. In the first step, maintenance removed vegetation and minor occlusions; restored NS1 and EW1 to their original condition immediately before the excavation; and was neither routine nor custodial. In the second step, alteration extended the excavation beyond maintenance of NS1 and EW1 in their original condition; increased the flow of water in each; increased the depth and width of each; and increased the function and capacity of each. The third step in the transaction involved a new way of operating NS1 and EW1 after the first two steps. Even if the new operation were not a step within the excavation, because it arguably did not occur until after the excavation was completed, the transaction consisted of the two steps in the excavation and a third step after the excavation. In either case, the new operation of NS1 and EW1 is a separate activity for which a permit is required pursuant to Section 373.416. The separate permitting requirements in Sections 373.413 and 373.416 apply to each separate step in the transaction. If excavation had ceased after the maintenance step, no alteration or new operation of NS1 and EW1 would have occurred. Nevertheless, permitting requirements would have required a permit for the maintenance performed in the completed step unless that step qualified for a maintenance exemption. Once the excavation progressed beyond maintenance, it involved the additional, but separate, steps of "alteration" and "operation" for which a permit is required and for which no exemption is claimed by Respondents. If each separate step were separated in time, separate permitting requirements would have applied to each step. Modern does not avoid the separate permitting requirements in Sections 373.413 and 373.416 by integrating three separate steps into a single transaction. Estoppel 204. The weight of the evidence does not show that the District is estopped from enforcing applicable permitting and exemption requirements. The evidence does not show that the District represented to Respondents that the excavation of NS1 and EW1 did not require a permit or qualified for an exemption. Factual Representations Prior to the excavation of NS1 and EW1, District staff met with Mr. Charles Moehle, Mr. Michael Moehle, Mr. Nelson, and a number of others. The meeting was held to discuss the proposed cleaning of the IRCC. A number of issues were discussed at the meeting. One issue involved a driveway that had been constructed in the IRCC without culverts. The District determined that the driveway did not create a substantial adverse impact on area property owners because the IRCC did not carry enough water. Most of the water draining south out of the contested area drained south of the IRCC to the Addison Canal. The District told attendees at the meeting that the District would clean out most of the vegetation in the IRCC. Brevard County subsequently installed culverts in the IRCC where the driveway had been constructed originally without culverts. At the southeast corner of the smaller parcel east of I-95, the IRCC turns obliquely northeast for about a half mile and then resumes its eastward direction toward Indian River City. Respondents claim the IRCC turns north at NS1, at a right angle, and then turns east at EW1, at another right angle, and resumes its eastward direction to Indian River City. The District did not represent to Respondents that the IRCC follows NS1 and EW1 and flows under I-95 to Indian River City. The District never indicated that NS1 and EW1 could be cleaned out under a maintenance exemption as part of the IRCC or otherwise. Mr. Frank Meeker, the Ombudsman for the District, met with Mr. Michael Moehle at least three times between February 14 and April 22, 1996, to discuss the problems of high water on Modern property. Mr. Meeker indicated that a culvert needed to be placed under the driveway in the IRCC, which was later done by Brevard County, and that NS1 needed to be cleaned out to eliminate the blockage south of SR 50 in the vicinity of the Titusville Waste Water Treatment Plant. NS1 was cleaned out south of SR 50. Mr. Meeker reviewed the work and indicated to Mr. Michael Moehle that the work constituted borderline maintenance. Mr. Meeker never indicated that the excavation of NS1 and EW1 north of SR 50 would be exempt from statutory permitting requirements. Mr. Meeker has neither the actual nor apparent authority to rule on permit requirements. Mr. Meeker sent a letter to Mr. Charles Moehle in April 1996. Nothing in that letter suggests that the excavation of NS1 and EW1 would be exempt from statutory permitting requirements. Disparate Treatment Respondents claim that the District treated them unfairly. The weight of the evidence shows that the action taken by the District did not result in disparate treatment. 9.2(a) Cracker Barrel-1, Cracker Barrel-2, and Lowe's Since 1996, the District has issued three permits for construction of different projects on property owned by Modern or Omni in the area of NS1 and EW1. The three projects involved significant impacts to wetlands. The three projects are referred to in this proceeding as Cracker Barrel-1, Cracker Barrel-2, and Lowe's. In determining whether a particular piece of property contains wetlands, the District relies on a statewide wetland delineation rule described in Section 373.421 and Rule 62.340. The District considers vegetation, soils, and hydrology to delineate wetlands. The District utilized this delineation rule when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District determines a mitigation ratio for construction on wetlands through a balancing process. The District weighs the quality of the wetlands on a particular construction site against the quality of the mitigation plan. The District relied on this same process when it issued permits for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. Cracker Barrel-1 involved approximately 4.5 acres of wetlands on a 5-acre site just south of Modern-1. The District issued a permit for the construction of Cracker Barrel-1 approximately two months after receipt of the application. Cracker Barrel-2 involved approximately 11 acres of wetlands on a 15-acre site. The District issued a permit for the construction of Cracker Barrel-2 approximately two months after receipt of the application. Lowe's is located east of I-95, north of SR 50, west of SR 405, outside the contested area, but adjacent to the contested area. Lowe's involved approximately 22 acres of wetlands on a 25-acre site. Lowe's was not an easy project to permit due to the extensive acreage and wetlands impacts. The District issued a permit for the construction of Lowe's approximately four months after receipt of the application. 9.2(b) Unnecessary Delay and Expense Respondents complain that the District unfairly increases the time and expense associated with permit applications through pre-application negotiations intended to resolve issues that typically arise when formulating a mitigation plan for construction on wetlands. Respondents contend that the delay before an application can be submitted is unreasonable. Respondents point to a delay of almost a year between the time Modern first complained in 1996 of flooding and the refusal of the District to approve any corrective action. Respondents also cite delays in pre-application negotiations for Cracker Barrel-1, Cracker Barrel-2, and Lowe's. The District did not delay its investigation of the flooding allegedly caused by the Hacienda Road project. The District conducted an appropriate investigation and reasonably determined that the flooding was not attributable to the Hacienda Road project. The delays complained of by Respondents are reasonable incidents of good faith attempts by the District to effectuate its statutory responsibilities through mutual agreement. The weight of the evidence does not show that the delays complained of by Respondents constitute disparate treatment. The delays were not de jure delays that resulted from a design or intent on the part of the District to delay Modern and Omni in their construction and development ventures. The weight of the evidence shows that the delays were reasonably necessary to formulate mitigation plans for each construction project and to carry out the statutory obligations of the District prescribed in Sections 373.413 and 373.416. 9.2(c) Selective Exemption Respondents claim that the District is unfairly applying certain maintenance exemptions to the excavation carried out by Modern. Respondents complain that the District previously granted maintenance exemptions for projects carried out by entities unrelated to Respondents but denied any maintenance exemption for the excavation of NS1 and EW1. Activities covered by applicable permitting requirements either do or do not qualify for a maintenance exemption. No separate application is required for such an exemption. A person who performs work based on the assumption that the work qualifies for an exemption assumes the risk that the work does not qualify for the exemption. If the work is performed in violation of applicable permitting requirements, it may qualify for an after-the-fact permit or corrective action may be required. The District has previously granted relevant maintenance exemptions for a number of different projects carried out by entities unrelated to Respondents and has also denied maintenance exemptions in other instances including the excavation of NS1 and EW1. The weight of the evidence shows that the District is not applying maintenance exemptions to the excavation of NS1 and EW1 in a manner that results in disparate treatment of Modern or its co-respondents. Brevard County cleaned out a portion of NS1 south of SR 50 based on the mistaken conclusion that the work qualified for a maintenance exemption. After the District began this enforcement action against Modern, the District determined that the work did not qualify for a maintenance exemption and required Brevard County to apply for a permit. Brevard County applied for a permit, albeit belatedly. The District granted the permit because the work complied with applicable criteria and did not result in adverse impacts to wetlands or the Refuge. In another instance, the District discovered some ditch plugs in ditches adjacent to property owned by a person named "Dr. Broussard." The District requested Dr. Broussard to remove the plugs, and Dr. Broussard complied. 9.2(d) Selective Enforcement Respondents allege disparate treatment from the District on the ground that the District did not file an administrative complaint in the foregoing instances but filed such an action against Modern. However, the weight of the evidence shows that enforcement action was not reasonable in other instances because the District reached mutually agreeable resolutions with the regulated parties. The evidence shows that enforcement action was reasonably necessary in this proceeding. The District first became aware of the significance of the impacts of the excavation of NS1 and EW1 when the District received a letter from the Wildlife Service in March 1997. The District brought the matter to the attention of Modern. The District informed Modern of the seriousness of the situation, notified Modern that the excavation required a permit, and made Modern aware of the need to correct the situation by restoring the wetlands to their original condition. The District and Modern discussed various options for constructing weirs without reaching any agreement. Time was of the essence. When the District concluded that the parties were not going to reach agreement, the District undertook emergency action in May 1997 and filed the Administrative Complaint later in August 1997. The action taken by the District in this proceeding is consistent with the District's historical practice. When the District becomes aware of a potential violation, the District does not immediately file an administrative complaint. The District investigates the matter to confirm the existence and extent of a violation, if any, and makes reasonable efforts to resolve the matter informally. The District has not issued an emergency order prior to the excavation of NS1 and EW1 because an emergency order was not the most appropriate solution in other cases. However, the District has sought injunctions in circuit court against persons unrelated to Respondents. In this proceeding, an emergency order better served applicable statutory mandates to the District because the Wildlife Service was willing to perform the work needed to rectify the condition that existed within the Refuge. This combination of factors made an emergency order particularly well suited and practicable for carrying out the statutory responsibilities of the District. The weight of the evidence does not show that the District threatened criminal prosecution against Modern or its individual shareholders. The District has not referred this matter for criminal prosecution. However, the issue of whether a threat of criminal sanctions occurred is fairly debatable, even if it is immaterial to estoppel, the permitting requirements, and the exemption requirements. Paragraph 27 in the Administrative Complaint does put Modern on notice that Sections 373.129(5) and 373.136 authorize the District to file a cause of action in circuit court in which the District may seek civil penalties up to $10,000. Section 373.430(3)-(5) puts Modern on notice of the potential for criminal penalties in circuit court. In any event, Modern failed to prove that the District is estopped from requiring a permit or applying applicable exemption requirements to the excavation of NS1 and EW1. Modern neither applied for nor obtained a permit for the excavation of NS1 and EW1. Unless Modern qualifies for one of the exemptions authorized by statute or rule, Modern violated Section 373.430(1)(b) and is subject to the actions and penalties authorized in Sections 373.119 and 373.129(1), (3), (6), and (7). Exemptions Modern claims it is entitled to six exemptions from the permitting requirements in Sections 373.413 and 373.416. Four of the exemptions are found in Rules 40C-4.051(2)(a)1, 40C- 4.051(2)(a)3, 40C-4.051(11)(b), and 40C-4.051(11)(c). The other two exemptions are found in Section 403.813(2)(f) and (g). Two Grandfather Exemptions Rule 40C-4.051(2)(a) 1 and 3, in relevant part, authorizes exemptions for systems such as NS1, EW1, and the larger system, if they are: located in prescribed areas; and were constructed and operating prior to December 7, 1987, and March 2, 1974, respectively. NS1, EW1, and the larger system are located in the areas described in each rule. On the requisite dates, however, they were not constructed and operating. Rule 40C-4.051(2)(c), in relevant part, provides that the exemptions in Rule 40C-4.051(2)(a) apply only to those systems set forth in plans, specifications, and performance criteria existing on or before December 7, 1983, or March 2, 1974, as the case may be, and then only to the extent: 2. Such system is maintained and operated in a manner consistent with such plans, specifications and performance criteria. Rule 40C-4.051(2)(c) 2. Rule 40C-4.051(3), in relevant part, provides that the exemptions listed in Rule 40C-4.051(2) "shall not apply" to those systems which on either December 7, 1983, or March 2, 1974, as the case may be: . . . have ceased to operate as set forth in such system's plans, specifications and performance criteria. Modern does not qualify for either of the exemptions in Rule 40C-4.051(2)(a) 2 or 3. As a threshold matter, the weight of the evidence does not establish plans, specifications, or performance criteria (the "original criteria") for NS1, EW1, or the larger system on either December 7, 1983, or March 2, 1974. Even if the evidence did establish the original criteria and if the excavation merely restored NS1 and EW1 to the original criteria, the evidence clearly shows that neither NS1, EW1, nor the larger system were constructed and operating in accordance with the original criteria on the prescribed dates. Rather, the evidence shows that NS1, EW1, and the larger system had become seriously degraded and no longer operated at their post- excavation levels. Two Maintenance Dredging Exemptions Modern claims that it qualifies for the exemption in Rule 40C-4.051(11)(b). That rule, in relevant part, exempts from the permitting requirements in Sections 373.413 and 373.416: The . . . maintenance dredging of existing manmade canals [and] channels . . . where the spoil material is . . . removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into wetlands or other surface waters, provided no more dredging is performed than is necessary to restore the canal [and] channels . . . to original design specifications and provided that control devices are used at the dredge site to prevent . . . deleterious substances from discharging into adjacent waters during maintenance dredging. . . . This exemption shall not apply to the removal of a natural . . . barrier separating a canal . . . or system from adjacent wetlands or other surface waters. Prior to the amendment of Section 403.813(2)(f) in October 1997, the maintenance exemption in the statute was substantially similar to that in the quoted rule. The two exemptions are first discussed together as they existed prior to the statutory amendment in 1997. The exemption requirements created by the 1997 amendments are discussed separately. 10.2(a) Requirements Before 1997 The excavation of NS1 and EW1 in January 1997 was "dredging" within the meaning of Section 373.403(13). It was excavation by any means in surface waters defined in Section 373.019(16) or wetlands delineated in Section 373.421(1). The excavation also connected Pond-1, a water body, to surface waters or wetlands. 10.2(a)(1) Canals, Channels, or Ditches The maintenance dredging exemptions authorized in Section 403.813(2)(f) and Rule 40C-4.051(11)(b) apply only to canals or channels. The exemptions do not apply to drainage ditches. Neither Section 373.403 nor Rule 40C-4.021 define the terms "canals, channels, or ditches." However, the terms are defined in Section 403.803(2),(3), and (7). The definitions in Section 403.803 may be used to define the terms of the exemptions in Rule 40C-4.051(11)(b). In October 1995, the legislature consolidated the dredge and fill permitting provisions in Chapter 403 with the permitting provisions for the management and storage of surface waters in Chapter 373, Part IV. Section 403.813(2) expressly provides that the exemptions authorized in Section 403.813(2) apply to the permit requirements in Chapter 373. Section 373.413(9) directs water management districts in the state to incorporate the provisions of Rule 62-312.050 into the rules of the districts and to rely on the existing provisions governing the dredge and fill program when implementing the rules of the districts. Neither NS1 nor EW1 is a canal within the meaning of Section 403.803(2). Although each is a manmade trench, the bottom of neither NS1 nor EW1 is normally covered by water within the meaning of Section 403.803(2). Portions of NS1 and EW1 which are upstream from high spots or elevation controls are "normally" covered by water. However, portions which are downstream of high spots are "normally" not covered by water during low-flow conditions and dry conditions in a normal or wet year, and during dry years. Neither NS1 nor EW1 is a channel as defined in Section 403.813(3). Although each is a trench, the length of NS1 and EW1 are not "normally" covered "entirely" with water during low-flow conditions and dry conditions in a normal year or wet year, and during dry years. Neither is the bed of a stream or river. NS1 and EW1 are each a drainage ditch or irrigation ditch within the meaning of Section 403.803(7). Each is a man- made trench created to drain water from the land or to transport water for use on the land, and neither is built for navigational purposes. NS1 and EW1 satisfy the definition of a drainage ditch or irrigation ditch irrespective of the degree to which the bottom of each is "normally" covered by water: upstream or downstream of high spots or control elevations; during low-flow conditions and dry conditions in normal or wet years; and during dry years. 10.2(a)(2) Additional Requirements Even if NS1 and EW1 were canals or channels, their excavation in 1997 does not qualify for the exemption in Rule 40C-4.051(11)(b). The excavation fails to satisfy several additional requirements for the exemption. The spoil material from the excavation was not placed on an upland spoil site which prevented the escape of spoil material and return water into wetlands and surface waters within the meaning of Section 373.019(16). Rather, Modern placed the spoil material in wetlands. Modern placed approximately 1.5 acres of fill in wetlands in the form of spoil material from the excavation. Modern placed approximately .75 acres of such fill in the wetlands and surface waters north of Marsh-1. 10.2(a)(3) Original Design Specifications More dredging was done than was necessary to restore NS1 and EW1 to their original design specifications. The weight of the evidence does not show the original design specifications for NS1 and EW1, including the bottom elevations, widths, slopes, and other pertinent specifications typically prescribed in original designs. However, the evidence does show the original condition of NS1 and EW1 immediately before their excavation. More dredging was done than was necessary to restore NS1 and EW1 to their original condition before the excavation. 10.2(a)(4) Natural Barrier The exemptions in Section 403.813(2)(f) and Rule 40C- 4.051(11)(b) do not apply to the removal of a natural barrier separating a canal from adjacent wetlands or other surface waters. The term "barrier" is not defined in Sections 373.403 or 403.803; or in Rule 40C-4.021. The term must be defined by its common and ordinary meaning. A barrier is something that acts to hinder or restrict. The high spots that existed in NS1 and EW1 before their excavation functioned as control elevations. The high spots were natural barriers during low-flow conditions, during dry conditions in normal and wet years, and during dry years. They acted to hinder or restrict the flow of water through EW1 and NS1 into adjacent wetlands and eventually to other surface water through the Addison Canal west toward the St. Johns River. The 3-4 foot wall of water that flowed down NS1 to SR 50 immediately after the excavation in 1997 provided vivid evidence of the effectiveness of the high spots that formed two-foot barriers before the excavation. The excavation did not use control devices which prevented deleterious substances from discharging into adjacent waters during maintenance dredging. The term "waters" is defined in Section 403.031(13) to include wetlands. The term is also defined in Section 373.016(17) and Rule 40C-4.021(29) in a manner that includes wetlands. Spoil material was placed in adjacent waters and not contained by adequate control devices. 10.2(b) Requirements After 1997 Additional provisions not found in Rule 40C- 4.051(11)(b) were added to Section 403.813(2)(f) in October 1997. In relevant part, the additional provisions extend the exemption in Section 403.813(2)(f) beyond canals and channels to include: . . . previously dredged portions of natural water bodies within drainage rights-of-way or drainage easements which have been recorded in the public records of the county . . . provided that no significant impacts occur to previously undisturbed natural areas, and provided that . . . best management practices for erosion and sediment control are utilized to prevent . . . dredged material . . . and deleterious substances from discharging into adjacent waters during maintenance dredging . . . . (emphasis supplied) 10.2(b)(1) Retroactivity As a threshold matter, the additional provisions in Section 403.813(2)(f) did not take effect until October 1997. The excavation of NS1 and EW1 occurred in January 1997. 10.2(b)(2) Drainage Easements Modern claims that it was not required to obtain a permit to excavate NS1 and EW1 because Modern possesses drainage easements for NS1 and EW1 which are recorded in the public records of Brevard County, in accordance with the requirements of Section 404.813(2)(f). Modern claims that it is entitled to maintain its drainage easements. Assuming arguendo that Respondents possess drainage easements and that the drainage easements are included in the exemption, the owner of drainage easements is no less subject to statutory permitting and exemption provisions than is the owner of the fee simple estate in land through which an easement runs. The existence of drainage easements is only one of the requirements in Section 403.813(2)(f) for an exemption from a permit. Modern must also show that it satisfies the other exemption requirements in Section 403.813(2)(f). 10.2(b)(3) Other Requirements The excavation of NS1 and EW1 resulted in significant impacts to previously undisturbed natural areas. The area subject to significant impacts was not limited to the excavation site but included 600-800 acres inside the Refuge. Modern failed to utilize best management practices to prevent dredged material and deleterious substances from discharging into adjacent waters during dredging. Dredged material and deleterious substances were deposited into adjacent wetlands. Two Maintenance Exemptions Rule 40C-4.051(11)(c), in relevant part, provides that no permit is required for the maintenance of "functioning . . . drainage ditches . . ." if: The spoil material is deposited on a self-contained upland spoil site which will prevent the escape of the spoil material and return water into wetlands or other surface waters. [and] * * * 3. . . . no more dredging is . . . performed than is necessary to restore the . . . drainage ditch to its original design specifications. The quoted requirements for the exemption in Rule 40C- 4.051(11)(c) are substantially identical to the requirements for the exemption in Section 403.813(2)(g). However, the exemption in Rule 40C-4.051(11)(c) applies to "functioning" ditches while the exemption in Section 403.813(2)(g) authorizes an exemption for "existing" ditches. 10.3(a) Functioning or Existing The terms "functioning" and "existing" are not defined in Sections 373.403, 403.803, or in Rule 40C-4.021. Each term must be defined by its common and ordinary meaning. The terms "functioning" and "existing" are not equivalent terms. The statutory provision authorizing maintenance exemptions for "existing" ditches precludes a maintenance exemption for initial "construction" of ditches. Existing ditches do not function if they are totally occluded by debris, silt, or vegetation that prevent any conveyance of water. Alternatively, a ditch that is dammed by a man-made device would not function but would exist. Before the excavation in January 1997, NS1 and EW1 each functioned to the extent that it performed the action for which it was particularly fitted or employed, albeit at a degraded capacity. Each existed irrespective of its level of function. The culverts for NS1 under SR 50 and south of SR 50 and those for EW1 under I-95 belie the District's contention that NS1 and EW1 neither functioned nor existed before the excavation. If the contention were correct, it would mean the construction of the culverts under SR 50 and south of SR 50 was a meaningless expenditure of taxpayer dollars. The District's contention suffers another internal inconsistency. If NS1, EW1, and the larger system were not functioning before the excavation, they may have failed one or more of the threshold requirements in Rule 40C-4.041(2)(b)2 because they did not "serve" 40 acres or any other area. NS1 and EW1 functioned and existed before the excavation. NS1 and EW1 each conveyed water when water exceeded high spots during dry and wet conditions in dry, normal, and wet years. EW1 conveyed water into NS1. NS1 conveyed water south through several culverts into the Addison Canal and west toward the St. Johns River. The bottom line is, the works worked. Even though NS1 and EW1 were "functioning" and "existing" before the excavation in January 1997, the excavation did not qualify for the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The excavation failed to satisfy additional requirements in the statute and rule. 10.3(b) Additional Requirements The excavation did not deposit spoil material on a self-contained upland spoil site which prevented the spoil material and return water from escaping into wetlands and other surface waters. The dredging was more than was necessary to restore NS1 and EW1 to their original design specifications. Unadopted Rule Respondents claim that the District's proposed agency action is based on a policy which satisfies the definition of a rule in Section 120.52(15) but which has not been promulgated in accordance with the rulemaking procedures prescribed in Section 120.54 (an "unadopted rule"). Respondents claim the unadopted rule restricts "maintenance" exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) to routine custodial maintenance; and to existing ditches that also function. Section 120.57(1)(e), in relevant part, provides: . . . Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject to de novo review by an administrative law judge . . . . . . . The agency must demonstrate that the unadopted rule . . . [satisfies the requirements of Sections 120.57(1)(e)2a-g] . . . . (emphasis supplied) If Respondents show that the District's proposed agency action is based on an unadopted rule and that the District has relied on the rule to determine the substantial interests of Respondents, then the agency must prove-up its unadopted rule by demonstrating in a de novo review that the unadopted rule satisfies the requirements of Section 120.57(1)(e). 11.1 Rule Defined Section 120.52(15), in relevant part, defines a rule to mean: . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and . . . includes the amendment or repeal of a rule. The term does not include: Internal management memoranda which do not affect either the private interests of any person or plan or procedure important to the public and which have no application outside the agency issuing the memorandum . . . . Section 120.52(15) establishes two conjunctive requirements as a threshold test for a rule. There must be a statement; and the statement must be one that is of general applicability. A statement of general applicability must also satisfy one or more disjunctive requirements. The statement must either implement, interpret, or prescribe law or policy; describe the practice requirements of an agency; amend or repeal a rule; or impose any requirement or solicit any information not required by statute or rule. 11.1(a) Statement The District published a working definition of routine custodial maintenance in a memorandum dated November 20, 1989 (the "Memorandum"). The Memorandum was authored by the District's Chief Engineer and approved by the Director of the Department of Resource Management (the "Director"). The Memorandum directs field office directors and compliance coordinators in regard to ditch work and routine custodial maintenance. In relevant part, the statement expressed in the Memorandum provides: This memorandum serves to clarify the District policy on: 1) the type of ditch maintenance work which qualifies for exemption from . . . permitting as specified in rule section 40C-4.051(2)(a)2.a . . . and, 2) procedures for verification that the work qualifies for this exemption. (emphasis supplied) This discussion only applies to work in ditches which trips . . . [a] permit threshold. . . . In many cases, none of these thresholds would be exceeded. Section 40C-4.051(2)(a)2.1. . . . specifically exempts the "maintenance" of "systems" in existence prior to December 7, 1983. Section 403.813(2)(f) and (g) also exempts the "maintenance dredging of canals and ditches. [sic] These exemptions, however, only apply to what is defined as "routine custodial maintenance." Work that results in the alteration of the system is not exempt and requires a permit from the District if a threshold is exceeded. Section 3.2.1 of the . . . Applicant's Handbook defines "alter" as "works beyond maintenance in its original condition." (emphasis supplied) Working Definition of "Routine Custodial Maintenance" (emphasis not supplied) Two basic criteria: The proposed maintenance work must be for the purpose of restoring the ditch system to its original design specifications. Such specifications would normally include: invert elevation, bottom width, side slopes, top width, ditch lining, ditch bottom profile (slope). In addition, such specifications may include culvert structures, including culvert type, size, invert elevation, length, slope and endwall detail. Maintenance work conducted under this exemption must not alter the hydraulic capacity or hydrologic functions of the ditch from that provided by the original design. The maintenance work must occur on a regular basis. The frequency of maintenance will be variable and dependent on site specific conditions and the level of service provided by the particular ditch system. However, for maintenance work to be exempt, the ditch should have been maintained to prevent deterioration to such a degree that it no longer functions as intended. In other words, routine custodial maintenance is limited to maintaining the ditch rather than re-building the ditch. As a rule of thumb, most ditch systems require maintenance at least once every ten to fifteen years. In some cases, more frequent maintenance is required to prevent a ditch form becoming non-functional. Examples of work which meet the test of "routine custodial maintenance" (provided that the ditch has been periodically maintained): Removal of accumulated silt and debris. Clearing of vegetation from the ditch. Clearing of culverts blocked by sediment or debris. Replacement of damaged culvert structures with same size culverts. Regarding and revegetating ditch side slopes. Examples of work which do not meet the test include: increasing the hydraulic capacity by deepening the ditch bottom and/or increasing the ditch cross section; lining an existing ditch with concrete or other material to improve hydraulic capacity; replacing existing culvert structures with different culvert sizes or placement of new culverts at different invert elevations; any maintenance dredging where spoil material is placed in wetlands; dredging or other maintenance work in natural system. Procedures for conducting maintenance work according to the . . . exemption (Section 40C-4.051(2)9a)2.a. . . . [sic] (emphasis not supplied) If the work is not routine custodial maintenance, the entity performing the work is responsible for obtaining the required permits prior to starting work. (emphasis supplied) Routine custodial maintenance may be conducted without contacting the District. However, upon request, the district will provide written verification that the work is exempt after receiving sufficient information to determine that the work is routing custodial maintenance. This information must include . . . evidence of the original design specifications as described below: * * * Case 2. No Design Specifications (Plans) Exist (emphasis not supplied) this will be the case for many ditch systems prior to . . . effective date . . . or not subject to permitting. . . . In this case, it is much more difficult to determine if the work qualifies for the exemption. The following may be used by the applicant to verify that the work qualifies for an exemption: Work will be limited to one or more of the maintenance activities listed above . . . . Other evidence as to the original specifications of the ditch system, such as: historical and current photographs and aerial photographs; contracts, bid documents, etc.; specifications for typical ditch sections; individuals attesting to the original ditch dimensions (such as contractors, former or current government employees); information on the soils and vegetation in the ditch. . . . Memorandum at unnumbered pages 1-3. The Memorandum is published evidence of the agency statement. However, the statement expressed in the Memorandum exists and is applied by the District independently of the Memorandum. The District expresses and applies the statement each time the District enforces agency action based on the statement and not just when the agency publishes a particular document that captures the statement in writing. The existence, terms, and scope of the statement are measured on a de facto basis by the effect of the statement. That effect emerges from all of the evidence of record including, but not limited to, the publication of the statement in various documents such as the Memorandum. The District illustrates in its PRO and PFO how easily an agency statement can elude the four corners of a particular document on which it is written and emerge from the evidence as an unwritten statement with broader applicability than that stated in a particular document. In relevant part, the District states: 9. The 1989 memorandum was not written to explain the maintenance exemption for . . . drainage ditches in 40C-4.051(11)(c) . . . because this rule did not exist when the memorandum was written. It was written to explain the grandfathering exemption at 40C- 4.051(2)(a) . . . which exempts the "maintenance" of "systems" in existence prior to December 7, 1983 from the permitting requirements of Chapter 40C-4. . . . (emphasis supplied) * * * Modern claims that the ditch excavation is exempt under the ditch maintenance exemption in 40C-4.051(11)(c). . . . (emphasis supplied) Not all ditch excavation is exempt under this exemption, just routine custodial maintenance . . . having a minor environmental impact. "Routine" indicates something that is done on a regular basis. (emphasis supplied) The maintenance exemption for ditches in paragraph 40C-4.051(11)(c) . . . is based on the exemption in paragraph 403.813(2)(g) . . . . 13. . . . the ditches that are subject to the grandfathering exemptions under 40C- 4.051(2) . . . are the same ditches that may also be exempt under the statute. . . . PFO at 7; PRO at 28. Although the Memorandum purports to limit the statement to the "grandfathering exemption" in Rule 4.051(2)(a), District practice relies on the statement to apply the exemptions in Section 403.813(2)(g) and Rule 40C-4.051(11)(c). The District has applied the statement consistently since at least 1984. 11.1(b) General Applicability The statement expressed in the Memorandum is a statement of general applicability within the meaning of Section 120.52(15). In effect, the statement creates rights, requires compliance, or otherwise has the direct and consistent effect of law. The District submitted evidence intended to refute the general applicability of the agency statement by showing that the District does not rely on the Memorandum. The District contends that it has never relied on the Memorandum separate and apart from the statutes and rules interpreted by the Memorandum; that it has never initiated an enforcement action that relies on the Memorandum; that the Director forgot about the Memorandum after signing it; and that District staff do not utilize the Memorandum on a regular basis. The District misses the point. The general applicability of a statement is not determined by the applicability of a particular document in which the statement is expressed. The general applicability of a statement is determined by the effect of the statement evidenced by all of its applications irrespective of the label assigned by the agency to each application. The Director may have forgotten that he signed the Memorandum, but the record shows that neither he nor his staff forgot about the statement expressed in the Memorandum that maintenance exemptions apply only to "routine custodial maintenance." The record is replete with examples of how the District applies the statement with general applicability whenever the District construes the term "maintenance" in Section 403.813(2)(f) and (g); in Rule 40C-4.051(2)(a) 2 and 3; and in Rule 40C-4.051(11)(b) and (c). The District illustrates in its PRO how the statement is applied with the direct and consistent effect of law. In relevant part, the District states: Florida Courts and agencies have consistently interpreted and applied the maintenance exemption to include the requirement that dredging must be . . . part of routine custodial maintenance (emphasis supplied) District PRO at 83. The statement expressed in the Memorandum is generally applicable within the meaning of Section 120.52(15). The statement defines the scope of the permit requirement in Section 373.416 and the scope of the exemption in Section 403.813(2)(g). The District consistently applies the statement to create rights, to require compliance, or to otherwise have the direct and consistent effect of law. 11.1(c) Law and Policy Although the statement implements, interprets, or prescribes law or policy, it does not do so by defining routine custodial maintenance as work which restores a ditch to its original design specifications. The requirement that maintenance must be no more than is necessary to restore a ditch to its original design specifications is present in each of the "maintenance" exemptions authorized in Section 403.813(2)(f) and (g) and in Rules 40C-4.051(2), 40C-4.051(11)(b), and 40C- 4.051(11)(c). The statement implements, interprets, or prescribes law or policy by applying maintenance exemptions only to routine custodial maintenance. The restricted application of maintenance exemptions effectively amends the definitions of "maintenance" in Section 373.403(8) and Rule 40C-4.021(20). The statement expressed in the Memorandum first refers to the exemptions in Section 403.813(2)(f) and (g). The statement then declares that "these exemptions . . . only apply to what is defined as 'routine custodial maintenance.'" Unlike the agency statement, Section 373.403(8) and Rule 40C-4.021(20) define "maintenance" to exclude "routine custodial maintenance." Because routine custodial maintenance is "not maintenance," routine custodial maintenance is neither subject to the maintenance permitting requirements in Section 373.416 nor required to satisfy the maintenance exemption requirements in Section 403.813(2)(f) and (g). Maintenance has only one definition. That single definition defines "maintenance" to exclude routine custodial maintenance from maintenance that is subject to the exemption requirements in Section 403.813(2)(f) and (g). There is not another definition that includes routine custodial maintenance in maintenance that must satisfy maintenance exemption requirements. Routine custodial maintenance is the definitional complement to maintenance. Remedial work that is routine custodial maintenance is "not maintenance." Remedial work that is not routine custodial maintenance is maintenance that must either obtain a maintenance permit or satisfy applicable "maintenance" exemption requirements. The terms "exclude" and "exempt" are not synonymous. Routine custodial maintenance that is excluded from the definition of maintenance is "not maintenance" and need not qualify as exempt maintenance. Maintenance that is not routine custodial maintenance is not excluded from the definition of maintenance. Included maintenance is subject to the maintenance permitting provisions but may qualify for a maintenance exemption if the maintenance satisfies the requirements prescribed for maintenance exemptions. 11.1(d) Practice and Procedure Even if the District statement did not amend existing statutes and rules, the statement describes the practice requirements for the District. It prescribes the criteria to be used in applying the ". . . working definition of 'Routine Custodial Maintenance.'" The statement prescribes information that normally should be included in original design specifications. It prescribes mandatory practice requirements including prohibitions against: any alteration of hydraulic capacity or hydrologic function beyond original design; and maintenance at less than regular intervals. The statement describes eligibility requirements used by the District. The statement provides that a permit is required, "If the work is not routine custodial maintenance . . . ." The statement describes information that must be provided in any request for verification that work is exempt. Such information must include ". . . evidence of original design specifications. . . ." Finally, the statement describes the type of evidence that will be considered by the District when original design specifications are not available. 11.1(e) Internal Management Memorandum The Memorandum is not an internal management memorandum that is excluded from the definition of a rule pursuant to Section 120.52(15)(a). The Memorandum has application outside of the agency. It affects the private interests of Respondents. It also affects a plan or procedure important to the public. Even if the Memorandum were an internal management memorandum, the agency statement exists and is applied by the agency independently of the Memorandum. 11.2 Prove-up Requirements: Section 120.57(1)(e) The statement evidenced in the Memorandum and elsewhere in the record is an unadopted rule within the meaning of Section 120.57(1)(e). The statement is defined as a rule in Section 120.52(15) but is not adopted as a rule in accordance with the rulemaking procedures prescribed in Section 120.54. The District relied on the unadopted rule to determine the substantial interests of Respondents. The District must show that the unadopted rule satisfies the requirements of Section 120.57(1)(e)2a-g. The unadopted rule satisfies the requirements of Section 120.57(1)(e)2a, part of c, and d. However, the rule does not meet the requirements of Section 120.57(1)(e)2b, the remainder of c, e, f, and g. 11.2(a) Powers, Functions, and Duties The unadopted rule is within the range of powers, functions, and duties delegated by the legislature within the meaning of Section 120.57(1)(e)2a. Section 373.416, in relevant part, delegates authority to the District to require permits and too impose conditions that are reasonably necessary to assure that the "maintenance" of any stormwater system, or works, complies with the provisions of Chapter 373, Part IV, and applicable rules promulgated pursuant to Chapter 373. Interpretation and application of the maintenance exemption authorized in Section 403.813(2)(g) and Rule 40C-4.051(11)(c) are within the range of powers delegated in Section 373.416. 11.2(b) Bridled Discretion The unadopted rule does not vest unbridled discretion in the District within the meaning of Section 120.57(1)(e)2c. The definition of routine custodial maintenance is bounded by numerous examples that do and do not qualify as routine custodial maintenance. The definition identifies the technical criteria to be used in the working definition of routine custodial maintenance. The definition prescribes reasonable procedures for conducting maintenance under an exemption, and formulates objective requirements for determining the sufficiency of original design specifications. 11.2(c) Arbitrary or Capricious The unadopted rule is not arbitrary or capricious within the meaning of Section 120.57(1)(e)2d. The rule has a rational basis and a legitimate purpose. It is based on fact and logic and seeks to prevent harm to the water resources of the District by requiring permits to review non-exempt maintenance activities which may have the potential for adverse environmental impacts. The definition of routine custodial maintenance is based on a fundamental engineering reality. If a ditch is not maintained, it will, as a general rule, fill-in and diminish in function and capacity. Ditches fill-in at different rates, depending on site- specific conditions, the level of service provided by the ditch, and the level of work performed during each maintenance interval. Ditches with high water-velocity may not require maintenance as frequently in order for the maintenance to satisfy the requirement that it be performed regularly. NS1 and EW1 must be maintained relatively frequently in order for maintenance to qualify as routine maintenance. The water velocity in these ditches is low because the surrounding area is flat and because water velocity is controlled by culverts and water levels south of SR 50. The low water velocities contribute to the filling of NS1 and EW1 with sediment. The high sediment content in the surrounding native lands also contributes to the filling of NS1 and EW1. The Crane Creek ditch in Brevard County illustrates the relativity of the frequency standard. In that case, the District determined that maintenance of the Crane Creek ditch qualified for a maintenance exemption approximately 20 years before when the ditch had last been maintained. There was considerable slope in the ditch. High water velocities in the ditch kept the ditch well scoured. In addition, the surrounding area was highly developed and covered with either pavement or lawns which provided little sediment material. It is theoretically possible for maintenance to be routine even though the interval of maintenance is 50 years. As a practical matter, however, a maintenance interval of 20 years represents the upper limit for maintenance in the general region of NS1 and EW1. Time is not the only factor in determining whether maintenance is routine. The frequency with which work must be performed to be routine depends on site-specific conditions as well as the level of service provided both by the particular ditch and by the particular work performed at each maintenance interval. The bottom line in determining if maintenance is routine custodial maintenance is whether the maintenance is regular enough to maintain continuity of function. Continuity of function is important to persons upstream and downstream of a ditch. Once a ditch has become nonfunctional, other property uses may occur upstream or downstream of the ditch in reliance upon the fact that the ditch is no longer functional. 11.2(d) Modifies or Contravenes The unadopted rule modifies or contravenes the specific law implemented in violation of Section 120.57(1)(e)2b. For reasons stated in earlier findings and incorporated here by this reference, the unadopted rule modifies and contravenes Sections 373.403(8), 373.416, and 403.813(2)(g). The unadopted rule also modifies and contravenes Rules 40C-4.021(20), 40C- 4.051(2)(a) 2 and 3, and 40C-4.051(11)(c). The term "maintenance" is defined in Section 373.403(8) to exclude routine custodial maintenance. By limiting maintenance exemptions to routine custodial maintenance, the unadopted rule transforms the statutory exclusion of routine custodial maintenance into a statutory inclusion. The unadopted rule modifies and contravenes the specific law implemented in another way. The unadopted rule exempts only the maintenance of "systems." In the statement of criteria, the Memorandum states that work must be done to restore the "ditch system." However, statutory maintenance exemptions are not limited to systems. They apply to individual canals, channels, and drainage ditches. Similarly, Sections 373.413 and 373.416 require permits for works such as individual ditches as well as systems. By limiting the maintenance exemptions to systems, the unadopted rule modifies and contravenes the specific law implemented. 11.2(e) Vague and Inadequate Standards The limits on discretion in the unadopted rule do not grant unbridled discretion to the District. However, some of the standards imposed in the rule are vague and inadequate in violation of Section 120.57(1)(e) 2c. The unadopted rule states two sets of criteria for a working definition of routine custodial maintenance. The first set of criteria address the purpose of the work performed. The second set of criteria address the interval or regularity of the work performed. The unadopted rule states that the purpose of routine custodial maintenance must be to restore the ditch to its "original design specifications." During testimony at the hearing, however, the District explained that the purpose of routine custodial maintenance could be to restore the ditch to its "existing function." A discussion in the proposed findings of the District's PRO illustrates the ambiguity: 64. If a ditch has filled in over a number of years so that it no longer retains its original function but does convey some water during high rain events, the ditch could not be cleaned out to its original design under the maintenance exemption. . . . To the extent that it still had some function that was usable for the surrounding area, it could be maintained to maintain that existing level of function. . . . (emphasis supplied) District PRO at 31. The interval at which work must be performed to satisfy the definition of routine custodial maintenance is vague and inadequate in the unadopted rule. In the Memorandum, the unadopted rule states that most ditch systems in Florida require maintenance once every 10 to 15 years. At the hearing, however, District witnesses who were asked to explain the District policy stated that ditches in Florida typically lose their function if not maintained every five to ten years. A range of 5 to 15 years is too vague to provide an adequate standard by which regulated parties are able to ascertain whether they are in compliance with the rule. The definition of routine custodial maintenance will necessarily vary with site-specific conditions of the ditch. However, it is clear from the evidence that the unadopted rule defines the purpose and interval of routine custodial maintenance by vague standards that can vary substantially with the person who is interpreting the unadopted rule. Standards prescribed in the unadopted rule are vague and inadequate in another aspect. Time is not the only factor considered in the unadopted rule to determine whether work is routine and custodial. Maintenance must be frequent enough to maintain a continuity of function for a particular ditch. Continuity of function suggests that function may be measured over a continuum of time. However, the unadopted rule does not quantify the continuum and does not identify the site- specific conditions that will be considered in assessing continuity of function during any particular continuum. The unadopted rule does not state whether the site-specific conditions will be assessed during low-flow conditions in dry years, normal years, or wet years; or whether alternating dry and wet conditions within each type of year also factor into the formula for continuity of function. The unadopted rule does not identify the relative weight, if any, assigned by the agency to these and other site specific-conditions used in the formula for determining continuity of function. 11.2(f) Due Notice The unadopted rule is being applied to Respondents without due notice in violation of Section 120.57(1)(e)2e. An agency cannot provide adequate notice of vague and inadequate standards contained in the unadopted rule; notice of vague and inadequate standards is inherently vague and inadequate. Such notice does not provide regulated parties with due notice of the standards by which they can judge their compliance with the rule. 11.2(g) Evidence of Support The unadopted rule is not supported by competent and substantial evidence within the meaning of Section 120.57(1)(f). Although the technical standards used to define routine custodial maintenance in the unadopted rule are supported by competent and substantial evidence, the basis for the application of that definition is unsupported. The technical standards used to define routine custodial maintenance in the unadopted rule are matters infused with agency expertise and should not be overturned unless clearly erroneous. The technical standards are not clearly erroneous and are supported by competent and substantial evidence. The standards used by the District to apply the definition of routine custodial maintenance are not infused with agency expertise. They are infused with the District's legal interpretation of relevant case law and, in particular, one circuit court case in 1984. Evidence submitted by the District does not support the standards used by the District to apply the unadopted rule. The District contends that the limitation of maintenance exemptions to routine custodial maintenance in the unadopted rule implements and reiterates principles developed in St. Johns River Water Management District v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 7 Fla.Supp. 2d 61 (9th Judicial Circuit of Florida, October 29, 1984), affirmed, Corporation of President of Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Management District, 489 So. 2d 59 (Fla. 5th DCA 1986), rev. denied, 496 So. 2d 142 (Fla. 1986). As the trial court did, the parties in this proceeding refer to the decision in Latter-Day Saints as the "Deseret" case ("Deseret"). The District asserts that the unadopted rule is intended to ". . . reiterate the Deseret holding regarding 'routine custodial maintenance' . . .". The District also claims that it: . . . relied on the lower court Deseret decision, as well as the common meaning of the terms and the common things that you look for in what is an original design specification. The District's policy [is] to require compliance with the Deseret holding. District PFO at paragraph 13, page 9. A determination of whether the unadopted rule is supported by competent and substantial evidence of the principles and holdings in Deseret requires a two-step factual examination. Factual findings must first identify the principles developed in Deseret and then elucidate whether the unadopted rule actually implements or reiterates those principles and holdings. In October 1982, the landowner in Deseret increased, by one foot, the height of a perimeter dike system originally constructed between 32 and 42 years earlier to prevent water from either getting into or out of the area protected by the dike. No work had been performed on the dike for approximately 25 years, and portions of the dike had failed or declined in the interim. The landowner claimed the work was exempt pursuant to the maintenance exemption authorized in Section 403.813(2)(g). The trial court entered three holdings in Deseret which are relevant to the authority relied on by the District for its unadopted rule. In relevant part, the trial court held in paragraphs 10 and 12 of its Conclusions of Law: 10. . . . The legislature excluded only routine custodial maintenance from the permitting requirements of Chapter 373. (emphasis supplied) 10. . . . the exemption applies only to routine custodial maintenance having a minimal adverse environmental effect. (emphasis supplied) 12. . . . Deseret has failed to meet the burden of proving entitlement to the maintenance exemption under Section 403.813(2)(g). . . . Deseret, 7 Fla.Supp. 2d at 66-67. The district court did not expressly rule on the trial court's holding that the maintenance "exemption" applies only to routine custodial maintenance. The district court expressly approved only the trial court holding that the legislature "excluded" routine custodial maintenance and the trial court holding that the evidence failed to show entitlement to the maintenance exemption. In relevant part, the district court said: We agree with the trial court's conclusion that the legislature intended to exclude only routine custodial maintenance . . . from permit requirements. We also agree that the Church was not entitled to a maintenance exemption because it failed to meet its burden of proving the original design specifications for the dike system. (emphasis supplied) Deseret, 489 So. 2d at 60-61. The unadopted rule imposes requirements supported by the only ruling in the circuit court decision that was not expressly approved by the district court in Deseret. The unadopted rule reiterates and implements a holding that appears only in the trial court decision. Any reasonable doubt as to the basis for the holding in Deseret was removed in 1993 by the First District Court of Appeal in SAVE the St. Johns River v. St. Johns River Water Management District, 623 So. 2d 1193 (Fla. 1st DCA 1993). In SAVE, the Sportsmen Against Violating the Environment contended, as the District does in this proceeding, that the maintenance exemption applies only to routine custodial maintenance. In rejecting that contention, the court explained the basis for the earlier decision in Deseret. The court stated: . . . the [Deseret] court held that the applicant seeking to rebuild dikes on ranch land was not entitled to a subsection 403.813(2)(g) maintenance exemption for two reasons: (1) the church had failed to carry its burden of proving the original specifications . . . , and (2) the rebuilding would require extensive work since the dikes had not been maintained for over 25 years, the dike system had subsided, and the dike failed to keep water off the ranch during that period. SAVE, 623 So. 2d at 1203. In SAVE, the court explicitly rejected the contention that the maintenance exemption applied only to routine custodial maintenance. The court entered the following ruling: This brings us to SAVE's third contention, that Smith wholly failed to qualify for an exemption under subsection 403.813(2)(g). This is a multifaceted argument that we reject in all respects. SAVE cites no . . . authority to support its contention that the exemption under this subsection is limited to "routine" or "custodial" maintenance that conceptually excludes refilling the breaks from the scope of the exemption. Subsection 403.813(2)(g) requires only that the dike be restored to "its original design specifications." (emphasis supplied) SAVE, 623 So. 2d at 1202. The District argues that the court in SAVE did not reject the contention that the exemption applies only to routine custodial maintenance but merely held that there was nothing in routine custodial maintenance that conceptually excludes the refilling of the breaks. The court goes beyond the "conceptual" realm in the next sentence when the court expressly states that Section 403.813(2)(g) requires "only" that works be restored to their original design specifications. The District cannot read the decision in SAVE in isolation from the plain language of Section 373.403(8). Section 373.403(8) provides more than a "conceptual" reason why the exemption in Section 403.813(2)(g) does not apply to routine custodial maintenance. Section 373.403(8) expressly states that maintenance "excludes routine custodial maintenance." The exemption authorized in Section 403.813(2)(g) applies only to maintenance defined in Section 373.403(8) to exclude routine custodial maintenance. Only maintenance that is not routine custodial maintenance must satisfy the requirements in Section 403.813(2)(g) for an exemption. Routine custodial maintenance is "not maintenance" and is not required to either obtain a maintenance permit or qualify for a maintenance exemption. 11.2(h) Regulatory Costs The District failed to show that the unadopted rule does not impose excessive regulatory costs on Respondents within the meaning of Section 120.57(1)(e)2g. It is true, as far as it goes, that regulatory costs incurred by a proposed activity are not excessive once a determination is made that the activity either is or is not routine custodial maintenance. As this proceeding illustrates, however, the regulatory expense that must be incurred to show that excavation is routine custodial maintenance can be substantial. Any such expense is excessive when it is incurred to satisfy a requirement that is not found in applicable statutes or rules. Effect of Unadopted Rule The District may not rely on the unadopted rule to affect the substantial interests of Respondents. The District failed to "prove-up" the requirements of Sections 120.57(1)(e)2b, c, e, f, and g. The proposed agency action is supported by the evidence-of-record in this proceeding without relying on the unadopted rule. For reasons stated in earlier findings and incorporated here by this reference, the District action taken in the Emergency Order and the action proposed in the Administrative Complaint are supported by the weight of the evidence after the unadopted rule is excluded from consideration. The excavation of NS1 and EW1 in January 1997 was not "routine custodial maintenance" based on the common and ordinary meaning of the term, rather than the unadopted rule. Part of the excavation of NS1, EW1, and the larger system was "maintenance," which must satisfy the requirements of any claimed exemptions in order to avoid applicable permitting requirements. That part of the excavation which was maintenance did not satisfy essential requirements for any of the "maintenance" exemptions in Section 403.813(2)(f) and (g) and Rules 40C- 4.051(2)(a), 40C-4.051(11)(b), and 40C-4.051(11)(c). The weight of the evidence did not show that: the "maintenance" consisted of only that "remedial work" which was necessary to return NS1 and EW1 to their original design specifications within the meaning of Section 403.813(2)(f) and (g) and Rule 40C- 4.051(11)(b) and (c) 3; spoil material was deposited on an upland soil site that prevented the escape of spoil material or return water, or both, into wetlands, other surface waters, or waters of the state within the meaning of Section 403.813(2)(f) and (g); and Rule 40C- 4.051(11)(b) and (c) 1; the excavation was performed in such a way that prevented deleterious dredged material or other deleterious substances from discharging into adjacent waters during maintenance within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); the excavation resulted in no significant impacts to previously undisturbed natural areas within the meaning of Section 403.813(2)(f); no natural barrier was removed which separated NS1 and EW1 from adjacent waters, adjacent wetlands, or other surface waters within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b); and the excavation performed maintenance dredging on canals or channels within the meaning of Section 403.813(2)(f) and Rule 40C-4.051(11)(b). That part of the excavation defined as an alteration of NS1, EW1, and the larger system is not entitled to the "maintenance" exemptions claimed by Respondents. Similarly, that part of the excavation defined as an operation of the ditches is not entitled to the "maintenance" exemptions claimed by Respondents. Pursuant to Sections 373.413 and 373.416, Modern was required to obtain a permit for the excavation of NS1, EW1, and the larger system in January 1997. Modern neither applied for nor obtained a permit for the excavation. Modern violated the permitting requirements authorized in Sections 373.413 and 373.416. Modern is subject to the proposed agency action in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order upholding the Emergency Order and directing Modern to undertake and complete, in a reasonable time and manner, the corrective actions described in the Administrative Complaint. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999. COPIES FURNISHED: Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32399-1300 Liz Cloud, Chief Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, west Post Office Box 1429 Palatka, Florida 32178-1429 Marianne Trussell, Esquire Murray M. Wadsworth, Jr., Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 William H. Congdon, Esquire Mary Jane Angelo, Esquire Stanley J. Niego, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Allan P. Whitehead, Esquire Moseley, Wallis and Whitehead, P.A. 1221 East New Haven Avenue Post Office Box 1210 Melbourne, Florida 32902-1210
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 evaluations of the subject application. An application for consumptive water use permit has been filed in proper form by Pat Nathe Groves, Inc., and admitted into evidence as Exhibit A. The water source is an existing well located on a 134-acre tract of land in Pasco County within the Withlacoochee Basin, as shown by Exhibit A. The water is to be used for irrigation purposes. The maximum daily withdrawal sought is 720,000 gallons and the average daily withdrawal sought is 130.192 gallons. Proper notice of this proceeding and application have been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The request of 130.192 gallons average daily withdrawal is approximagely 81.96 percent of the maximum average daily withdrawal allowed by the water crop theory set forth in Section 16J-2.11(3), F.A.C. Therefore, the requested withdrawal is not violative of the consumptive use test. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsections 16J-2.11(2), (3), and (4) exist so as to require the denial of this permit.
