Findings Of Fact Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III. At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor. Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981. Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences. Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors. In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed. During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed. Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March Caluwe was not disciplined for this action. On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney. On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding. Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982. In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board. On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe. On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below: To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you. The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know". One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy. However, on July 26 Rogers was given a copy of the letter. On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional 25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements." A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident." The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed. The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director. According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct. Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination. Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same. Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one Category 2e offense for which 25 points should be imposed. It is further RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement. DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1983.
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue to be determined in this case is whether Respondents, United States Sugar Corporation (“USSC”), Sugar Farms Co-op (“SFC”), and Sugar Cane Growers Cooperative of Florida (“SCGC”) (collectively “the Applicants”) are entitled to the Everglades Works of the District permits (“WOD Permits”), issued to them by the South Florida Water Management District (“District”).
Findings Of Fact The Parties Audubon is a not-for-profit organization dedicated to restoring and conserving natural ecosystems, focusing on birds and their habitats. Audubon has a substantial interest in the protection of the Everglades and other ecosystems in the area. Audubon’s interest is affected by the proposed agency action because the WOD Permits authorize agricultural discharges that affect these ecosystems. The District is a Florida public corporation with the authority and duty to administer regulatory programs in chapter 373, and Florida Administrative Code Title 40E, including a program for regulating discharges from the Everglades Agricultural Area (“EAA”) into works of the District. The EAA is located south of Lake Okeechobee and comprises about 570,000 acres. The majority of EAA agriculture is sugarcane, with some row crops, such as radishes, leafy vegetables, and corn, and turf sod. During fallow periods, rice is also grown. The Applicants are owners and lessees of agricultural lands in the EAA. Background Some essential background for this case is set forth in rule 40E-63.011: The Everglades is a unique national resource. It has a high diversity of species, and provides habitat for large populations of wading birds and several threatened and endangered species, including wood storks, snail kites, bald eagles, Florida panthers, and American crocodiles. Large portions of the northern and eastern Everglades have been drained and converted to agricultural or urban land uses. Only 50% of the original Everglades ecosystem remains today. The remainder is the largest and most important freshwater sub-tropical peatland in North America. The remaining components of the historic Everglades are located in the Water Conservation Areas (WCAs) and Everglades National Park (ENP). ENP and Loxahatchee National Wildlife Refuge (WCA 1) are Outstanding Florida Waters, a designation which requires special protection for the resource. Large portions of the Everglades ecosystem have evolved in response to low ambient concentrations of nutrients and seasonal fluctuations of water levels. Prior to creation of the Everglades Agricultural Area (EAA), nitrogen and phosphorus were mainly supplied to large areas only in rainfall. Phosphorus is the primary limiting nutrient throughout the remaining Everglades. Sawgrass has lower phosphorus requirements than other species of Everglades vegetation. A substantial portion of EAA nutrients is transported to the remaining Everglades either in dissolved or in particulate form in surface waters. The introduction of phosphorus from EAA drainage water has resulted in ecological changes in substantial areas of Everglades marsh. These changes are cultural eutrophication, which is an increase in the supply of nutrients available in the marsh. The increased supply of phosphorus in Everglades marshes has resulted in documented impacts in several trophic levels, including microbial, periphyton, and macrophyte. The areal extent of these impacts is increasing. In 1988, the United States sued the District and the Florida Department of Environmental Regulation, now the Department of Environmental Protection (“DEP”), in federal court, alleging that the agencies failed to enforce Florida’s water quality standard for nutrients in waters of Loxahatchee Wildlife Refuge and Everglades National Park. The principal pollutant of concern was phosphorus. Audubon, USSC, and certain members of SCGC and SFC intervened in the federal case. In February 1992, the parties resolved their dispute through a settlement agreement approved by the federal court (“the Consent Decree”). The Consent Decree required the District and DEP to take action to meet water quality standards by December 31, 2002. At that time, the nutrient water quality standard was a narrative standard, prohibiting the discharge of nutrients so as to cause “an imbalance in natural populations of aquatic flora and fauna.” The Consent Decree directed the District to construct 34,700 acres of stormwater treatment areas (“STAs”) so that nutrient-laden surface water discharged from the EAA could be treated before discharge to the Everglades Protection Area (“EvPA”), which includes Loxahatchee Wildlife Refuge, Everglades National Park, and the Water Conservation Areas. STAs are large freshwater wetlands which remove phosphorus from the water column through physical, chemical, and biological processes such as sedimentation, precipitation, plant growth, and microbial activity. The first STAs were constructed and in operation in 1993. The Applicants operate in the S-5A Basin within the EAA. Their surface water is conveyed to STA-1W for treatment before being discharged to the EvPA. The Consent Decree required the District to initiate a regulatory program by 1992 to require permits for discharges from internal drainage systems (farms) in the EAA. The regulatory program was to be based on agricultural best management practices (“BMPs”). The goal of the program, as stated in the Consent Decree, was to reduce phosphorus loads from the EAA by 25 percent over the base period (1979-1988). In 1992, the District promulgated rule chapter 40E-63, which required EAA farmers to obtain WOD permits and to implement agricultural BMP plans. The BMP plans address fertilizer use and water management. Permittees must also implement a water quality monitoring plan. The rules require reduction of the total phosphorus loads discharged from the EAA Basin, as a whole, by 25 percent from historic levels. See Fla. Admin. Code R. 40E-63.101. If the EAA, as a whole, is in compliance, individual permittees are not required to make changes to their operations. See Fla. Admin. Code R. 40E-63.145(3)(d). If the 25 percent reduction requirement is not met, the rule contemplates that individual permittees in the EAA would have to reduce nutrient loads in their discharges. See Fla. Admin. Code R. 40E-63.145(3)(e).1/ The Consent Decree also required the District to obtain permits from the Department for discharges from the STAs to the EvPA and to conduct research and adopt rules to “numerically interpret” the narrative standard. In 1994, the Florida Legislature enacted the Everglades Forever Act (“the Act”), chapter 94-115, Laws of Florida, which is codified in section 373.4592. The Legislature authorized the district to proceed expeditiously with implementation of the Everglades Program. See § 373.4592(1)(b), Fla. Stat. The “Everglades Program” means the program of projects, regulations, and research described in the Act, including the Everglades Construction Project. The Everglades Construction Project involved the construction of 40,452 acres of STAs, which is 5,350 acres more than was required by the federal Consent Decree. The Act acknowledged the BMP regulatory program for the EAA that the District had established in rule chapter 40E-63, and stated: Prior to the expiration of existing permits, and during each 5-year term of subsequent permits as provided for in this section, those rules shall be amended to implement a comprehensive program of research, testing, and implementation of BMPs that will address all water quality standards within the EAA and Everglades protection Area. See § 373.4592(4)(f)2., Fla. Stat. The Act required DEP to issue permits to the District to construct, operate, and maintain the STAs. See § 373.4592(9)(e), Fla. Stat. The Act required development of a numeric water quality phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e), Fla. Stat. The Act set the goal of achieving the phosphorus standard in all parts of the EvPA by December 31, 2006. In June 1995, modifications were made to the Consent Decree. The deadline for achieving water quality standards in the EvPA was changed from December 31, 2002, to December 31, 2006. The STAs were increased from 34,700 acres to 40,452 acres. The chronological developments outlined above indicate the intent of the Legislature and the parties to the Consent Decree to conform state law and the Consent Decree to each other. In 2001, DEP initiated rulemaking that lead to its adoption of the Phosphorus Rule, rule 62-302.540, in 2003. The rule set a numeric phosphorus criterion for the EvPA of 10 parts per billion (“ppb”), applied through a four-part test in which attainment is determined separately for “unimpacted” and “impacted areas” of the EvPA. See Fla. Admin Code R. 62- 302.540(4). In conjunction with this rulemaking, the DEP and District developed the Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals (“Long- Term Plan”) in March 2003. The Long-Term Plan provided remedial measures and strategies divided into pre-2006 projects and post- 2006 projects. The pre-2006 projects included structural and operational modifications to the existing STAs, implementation of agricultural and urban BMPs in areas outside the EAA or C-139 basins, and construction of several restoration projects congressionally mandated by the Comprehensive Everglades Restoration Plan. Modeling of treatment capabilities of the STAs after implementation of the pre-2006 projects predicted that the 10 ppb standard for phosphorus could be achieved, but not consistently. Therefore, the Long-Term Plan required the District to identify and evaluate methods to improve phosphorus reductions, and if the phosphorus criterion was not achieved by December 31, 2006, to implement post-2006 modifications and improvements. The post- 2006 strategies include projects to expand and improve the STAs. They do not include changes to the BMP program. In 2003, the Legislature substantially amended the Act. It incorporated the Long-Term Plan into the Act, finding that it “provides the best available phosphorus reduction technology based on a combination of the BMPs and STAs.” § 373.4592(3)(b), Fla. Stat. The Long-Term Plan contemplates maintenance of the BMP program in the EAA, with refinements derived from BMP research. Recent Conditions and Events As previously stated, chapter 40E-63 requires the total phosphorus load from the EAA to be reduced by not less than 25 percent from historic levels. Since full implementation of the BMP regulatory program, annual phosphorus loads have been reduced by approximately 50 percent. Despite the efforts and projects undertaken, the phosphorus standard was not being achieved as of December 31, 2006, in all parts of the EvPA. In 2007, the DEP issued a permit to the District for discharges from the STAs to the EvPA (referred to as the “Everglades Forever Act” or “EFA permit”). The permit required the District to design and construct several regional water management projects, including structural enhancements to STA-1W, and the construction of 6,800 acres of additional STAs. The permit and its compliance schedules provided interim relief through 2016 from the water quality based effluent limitation (WQBEL) necessary to achieve the 10 ppb phosphorus standard. The 2007 EFA permit was not challenged by Audubon or any other entity. The District, DEP, and the United States Environmental Protection Agency began working together in 2010 to develop new strategies for achieving compliance with the phosphorus standard in the EvPA. The agencies determined that compliance could be achieved by expanding the STAs by 7,300 acres (6,500 acres would be added to STA-1W) and constructing flow equalization basins to store up to 110,000 acre feet of stormwater runoff. These basins are designed to attenuate peak flows into the STAs in order to improve the processes that remove phosphorus. In September 2012, DEP issued the District a new EFA permit, which authorized continued operation of the District’s S-5A pump station, STA-1W, and the related conveyance systems by which stormwater runoff from the S-5A Basin is ultimately discharged to the EvPA. The permit was issued with a Consent Order, requiring the District to expand STA-1W by 6,500 acres of effective treatment area in accordance with a timeline and the District’s Restoration Strategies. The 2012 EFA Permit and Consent Order were not challenged by Audubon or any other entity. In 2013, the Legislature amended the Act again. The Act’s reference to the Long-Term Plan was revised to include the District’s Restoration Strategies Regional Water Quality Plan, which called for expanding the STAs and constructing flow equalization basins. See § 373.4592(2)(j), Fla. Stat. The Legislature added a finding that “implementation of BMPs, funded by the owners and users of land in the EAA, effectively reduces nutrients in waters flowing into the Everglades Protection Area.” See § 373.4592(1)(g), Fla. Stat. The 2013 amendments indicated the Legislature’s intent to codify into law the strategies developed by the District and other regulatory agencies to achieve water quality standards in the EvPA. Those strategies do not materially change the BMP program in the EAA. The Act and the rules of the District create programs for achieving restoration of the EvPA that rely heavily on the STAs. Over the years, the STAs have repeatedly been enlarged and enhanced. In contrast, the requirement for farmers in the EAA to reduce their phosphorus loading by 25 percent has not changed in 21 years. It is beyond the scope of this proceeding to question the wisdom of the programs that have been established by statute and rule. Whether Additional Water Quality Measures Are Required A principal dispute in this case is whether the WOD Permits must include additional water quality measures to be implemented by the Applicants. Section 373.4592(4)(f)4. provides that, as of December 31, 2006, all EAA permits shall include “additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs.” Audubon asserts that the requirement for additional water quality measures has been triggered. The District does not interpret the statute as requiring additional water quality measures under current circumstances. The interpretation of the statute is primarily a disputed issue of law and is addressed in the Conclusions of Law. There, it is concluded that additional water quality measures are not required. Whether the BMP Plans are Adequate Audubon contends that the WOD Permits should be denied because the Applicant’s existing BMP plans are not “tailored” to particular soils, crops, and other conditions. This contention is based on section 373.4592(4)(f)2.c., which states in relevant part: BMPs as required for varying crops and soil types shall be included in permit conditions in the 5-year permits issued pursuant to this section. Audubon showed that the Applicants have similar BMP plans for the thousands of acres covered in the three WOD Permits, and contends that this similarity proves that BMPs are not being tailored to specific farm conditions. However, soils and crops are similar throughout the EAA. The soils of the EAA are almost entirely muck soils and the primary crop is sugarcane with some corn or other vegetable rotated in. The Applicants use many of the same BMPs because they have similar soils and grow similar crops. There are three main categories of BMPs implemented in the EAA: nutrient and sediment control BMPs, particulate matter and sediment control BMPs, and water management BMPs. See Fla. Admin. Code R. 40E-63.136, Appendix A2. The BMPs proposed by the Applicants are based on research in the EAA and recommendations specifically for EAA soils and the crops grown there. The Applications do not identify the specific BMPs that will be implemented, but only the number of BMPs that will be selected from each of the BMP categories (i.e., sediment control). The Applicants must use BMPs on the District’s list of approved BMPs unless an alternative BMP is requested and approved. The lack of greater detail was explained as necessitated by the need for flexibility during the life of the permit to adapt BMPs to varied crops and conditions. Audubon does not believe the BMP plans are tailored enough, but there is no rule criterion for determining how tailored BMP plans must be, except they must achieve the overall goal of reducing phosphorus loading in discharges from the EAA by at least 25 percent. This goal is being achieved.2/ Audubon did not show that any particular BMP being used by an Applicant was the wrong BMP for a particular soil and crop, or identify the BMP that Audubon believes should be used. Audubon failed to prove that the Applicants’ BMP plans do not meet applicable requirements. Whether the Applications Are Complete Audubon contends that the WOD Permits must be denied because the Applications are incomplete. Many of Audubon’s completeness issues deal with minor discrepancies of a type that are more appropriately resolved between the District and applicants, not violations of criteria that are likely to affect a third party’s interest in environmental protection. Rule 40E-63.130 lists the requirements for a permit application for activities in the EAA Basin. An Application Guidebook is incorporated into chapter 40E-63, which contains instructions for completing the application. For applications to renew a permit, the practice of the District is to not require the resubmittal of information that was previously submitted to the District and which has not changed. The Application Guidebook explains this practice. The Applicants supplemented their applications at the final hearing to provide information that Audubon claimed was omitted from the Applications.3/ Audubon contends that the Applications are incomplete because some application forms are not dated and other forms are not signed by appropriate entities. The District explained its rule interpretation and practices associated with the forms. Additional signatures and dates were submitted at the final hearing. Audubon failed to demonstrate that the Applications are incomplete based on the identity of the persons who signed application forms or the lack of dates. Audubon contends the Applications are incomplete because copies of contracts or agreements are not included as required by rule 40E-63.132(3). Audubon failed to prove that contracts and agreements exist that were not included. Audubon contends the Applications are incomplete because they do not contain a completed Form 0779, entitled “Application For A Works Of The District Permit,” as required by rule 40E-63.132(5). In some cases, the information for Form 0779 had been previously submitted and was unchanged, so the District did not require it to be resubmitted for the permit renewal. Additional information was provided at the final hearing. Audubon failed to prove that the Applications are incomplete based on missing information on Form 0779. Audubon contends that the Applications are incomplete because documentation regarding leased parcels was missing. Pursuant to rule 40E-63.130(1)(a), individual permit applications must be submitted by the owner of the land on which a structure is located and any entity responsible for operating the structure, and the permit application must include the owners of all parcels which discharge water tributary to the structure. Applications may be submitted by a lessee if the lessee has the legal and financial capability of implementing the BMP Plan and other permit conditions. The District explained that when applications are submitted by a lessee who will be the permittee or co-permittee, the District requires the lessee to be a responsible party for the entire term of the permit, which is five years. If the lessee is a not a co-permittee, the District does not require information about the lease and does not require the lessee’s signature. If the lessee is a co-permittee, but the lease expires during the term of the permit, the District requires the applicant to modify the permit when the lease expires. Audubon failed to prove that the Applications are incomplete based on lease information Audubon contends that the Applications are incomplete because they fail to show that the Applicants participated in an education and training program as required by rule 40E- 63.136(1)(g). The preponderance of the evidence shows that the Applicants participated in education and training programs. Audubon failed to prove that the Applications are incomplete for any of the reasons raised in its petition for hearing or advanced at the final hearing. Water Quality Standards in the EAA Audubon presented some evidence of algal accumulations in ditches and canals, but the evidence was insufficient to prove the Applicants are violating water quality standards applicable in the EAA. Summary Audubon failed to carry its burden to prove that the Applicants are not entitled to the WOD Permits.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that South Florida Water Management District issue Permit Nos. 50-00031-E, 50-00018-E, and 50-00047-E. DONE AND ENTERED this 10th day of February, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 10th day of February, 2014.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 25th day of November, 2002.
Findings Of Fact The Dunes Golf and Country Club, Sanibel, is a partnership owned by John K. Kontinos and William R. Frizzell. They operate a nine hole golf course consisting of 65 acres of the eastern portion of Sanibel Island. The golf course is open to the public and, during the winter season, some 150 to 175 persons utilize the facility daily, but in the period May--November, it is utilized by only about 15 or 20 persons per day. The golf course is presently irrigated by water obtained from the lower Hawthorn and Suwannee aquifers through a well that is approximately 737 feet deep. On the days that water is pumped from the well, the pumping duration is from 8 to 12 hours per day, but the monthly hours during which pumping occurs averages approximately 155 hours per month. There is another existing well in another portion of the applicant's property which extends 896 feet into the Suwannee aquifer. The well presently in use (well number 1) has 546 feet of casing and the well that is not in use (well number 2) has 700 feet of casing. (Testimony of Kontinos, Exhibits 2, 4) On December 15, 1977, the Dunes Golf and Country Club submitted an application to the South Florida Water Management District for a consumptive use permit to withdraw 320 acre feet of groundwater per year to irrigate an area of approximately 109 acres. The intent of the application was to obtain a sufficient quantity of water to irrigate the golf course which the applicant intends to enlarge to consist of 18 holes. The additional 9 holes would cover some 44 acres and well number 2 is intended to be activated to provide additional water for this purpose. (Testimony of Kontinos, Keiling, Exhibits 1- 2) The South Florida Water Management District issued the required public notice of the application on March 30, 1978, and objections to the application were received by that agency from the City Council of Sanibel, the Island Water Association, Inc., and George R. Campbell. Public notice of hearing on the application was duly published on March 30, 1978. (Exhibits 5-7) The staff of the South Florida Water Management District reviewed the application and recommended continuation of the applicant's existing use from the lower Hawthorn Formation and use of additional irrigation water from the Suwannee aquifer in the total amount of 320 acre feet annually. It also recommended that the issuance of a permit should be conditioned in various respects to include semiannual submission of water quality data and pumpage records for each well, installation and maintenance of well controls, and repair or replacement of well casings, valves or controls that leak or become inoperative. The staff further recommended that maximum monthly withdrawals from the lower Hawthorn Formation be limited to 7.5 million gallons and 7.6 million gallons from the Suwannee Formation. At the hearing however, the South Florida Water Management District representative changed these recommendations to 8.9 MO and 6.1 MG respectively. Additionally, the initial recommendation of 320 acre feet annual withdrawal was reduced to 200 acre feet. This amount is considerably less that the average of 600 acre feet used on other comparably sized golf courses. Further the staff representative recommended at the hearing that a further condition be attached to the issuance of the permit; i.e., Condition 15, which requires the permittee to submit analyses of total dissolved concentrations in water samples from each well within 30 days of permit issuance and, if such concentration exceeds 4,000 MG/L, logging procedures as to the affected well will be required with necessary safeguards to be employed to eliminate any interaquifer leakage. (Testimony of Gleason, Exhibit 4) The objections of the City of Sanibel and the Island Water Association, Inc. involved concerns that further withdrawals from the lower Hawthorn aquifer will affect the availability of water which is treated by the water association for general island use. In addition, there is concern about possible contamination of the lower Hawthorn aquifer from interaquifer leakage. The Water Association is a member-owned cooperative that is not under the jurisdiction of the municipality. It is concerned about the draw down in the water table which will be occasioned by additional withdrawals by the applicant. It therefore believes that pumping tests should be conducted prior to the issuance of a permit to provide information concerning the capacity and safe yield of the wells. Although an Association expert testified that the proposed Dunes' withdrawal would create a cone of depression that would extend into and influence the existing Water Association wells, the evidence shows such influence to be minimal due to the fact that the Dunes wells are almost three miles away from the nearest Association well. Further, due to the limited time that the Dunes wells are pumped each day, the aquifer recovers to a certain extent during other hours. Although concerns are felt by the Water Association that water quality will be affected because of leakage from the Suwannee aquifer to the lower Hawthorn aquifer due to possible corrosion of steel casings in the Dunes wells, no evidence was presented that such casings are in fact defective and will contribute to degradation of water quality because of additional withdrawals. The additional special condition placed upon the issuance of a permit by the South Florida Water Management District will require correction of any such leakage that is discovered in the future. Previous studies show that the lower Hawthorn aquifer is separated from the Suwannee aquifer by the Tampa Limestone Formation which would slow down any entry of poorer quality water into the Hawthorn aquifer. It is found that the lesser amounts of water recommended by the South Florida Water Management District at the hearing will further reduce the likelihood of water quality degradation or draw down in other Island wells. (Testimony of Butler, Holland, Nuzman, Gleason, Exhibits 6, 8-13) Ecological concerns were expressed at the hearing by a public witness as to the wastefulness of irrigating golf coup Yes and the requirement for fertilizer in sandy soil which causes leaching of nutrients after heavy water use. (Testimony of Webb)
Recommendation That a permit be issued to the applicant authorizing the consumptive use of the quantity of water recommended by the South Florida Water Management District staff, subject to the recommended conditions thereto. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. Wheeler Post Office Box V West Palm Beach, Florida 33402 James D. Decker, Esquire Post Office Box 200 Ft. Myers, Florida 33902
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: Quality of Service The prime concern and complaint of the customers who testified at the hearing was the quality of water they receive in their homes. The water was described as containing high levels of chlorine, to the extent that it smells of chlorine and, on occasion, fades or bleaches colored clothing when washed. At times, the water is cloudy or rusty in appearance and contains debris, such as sand, dirt or pebbles. One witness testified that clothing had been stained by rust in the wash water. Samples of water received into evidence illustrate the muddy appearance of the water, with debris visible. At times, the water is colored with algae, resulting in greenish-colored ice cubes. Broken appliances are attributed by several customers to have resulted from the debris contained in the water. Customers have experienced low water pressure in their homes and water outages for up to ten hours without prior notice from the petitioner. It was not established whether such water outages were the result of routine maintenance or emergency repairs. Several witnesses found it difficult to contact petitioner regarding billing errors and that slow or no responses to their inquiries were received. The billing errors included mailing the bill to the wrong address and the amounts of the bill. One such latter complaint is presently before the consumer affairs division of the Public Service Commission. The only complaints regarding sewer service were that there is often an unacceptable odor and that "there was sewage boiling out on my street two days in a row." (T.51) Notice of the hearing in this cause was mailed to all customers on February 25, 1981. The rate case documents were delivered by an employee of petitioner to the Clerk's office of the Lake County County Commission in the Lake County Courthouse on February 17, 1981. Water samples are taken on a monthly basis from each of the petitioner's plants. These samples are then analyzed for water quality in a state-controlled laboratory and the results are then sent to the Florida Department of Environmental Regulation and the local Health Department. Personnel from these regulatory bodies occasionally visit the plants and make independent tests. None of the petitioner's water systems or its sewer system are presently under citation from any regulatory body. A citation existing prior to the petitioner's acquisition of the Palms Mobile Home Park water system has been removed. Prior to the hearing, Petitioner's vice-president of operations, Charles Sweat, had not received any complaints from customers regarding the level of water pressure in their homes. With regard to notification of customers of water outages, it is the petitioner's policy to give a twenty-four hour written notice to all customers for planned, scheduled maintenance which would require the water to be off for any length of time. When accidents or emergencies occur, petitioner devotes its concentration to the restoration of service and advance notice is not possible. The Department of Environmental Regulation has minimum requirements relating to the amount of chlorine which must be added to a water system. There are no maximum requirements. One of the Fern Terrace water samples received into evidence at the hearing was very brown in appearance. On the day upon which that sample was taken, the system had experienced a malfunction of the air compressor, causing all the water to go out of the system. The brown-colored water was the result of debris and rust that had built up in the bottom of the tank. The inside of the tanks are cleaned on a periodic basis, and that particular tank had been cleaned approximately six months ago. Petitioner does have a main flushing program, and each system is flushed on a regular basis, the frequency of which is dependent upon the type of pipeline used and the quality of the water in the system. A flushing report is maintained to record the appearance of the water at the beginning and at the end of the flushing, the chlorine residual in the water, the amount of time taken and the estimated gallons flushed out of the line. No explanation was provided for another muddy water sample received into evidence. Rate Setting for the Morningview Sewer System The Morningview sewer system is capable of supporting a maximum of forty-two (42) residential connections. At the end of the 1979 test year, the system had only twenty-six (26) connections. The respondent, Public Service Commission seeks to impute sewer revenues from the unsold lots in the Morningview subdivision so as to recognize the plant capacity of 42 connections. It was undisputed that the sewer plant was 100 percent used and useful and no adjustment was made to this figure. Since petitioner's acquisition of the Morningview sewer system, it has experienced an average annual growth rate of 13.16 percent. During the last year and one-quarter, the growth rate has been approximately 25 percent. The number of connections has increased from 19 in 1976 to the present 30. Eleven connections have been added in a little over four years. The revenues from the imputed connections were obviously not collected during the test year, nor were they collected in 1980. It would take approximately three years to collect the imputed revenues at the current rate of growth. The Public Service Commission has not adopted a rule allowing this imputation method of ratesetting. The pro forma approach has been used in setting rates for a new utility or development, and has been described as an "innovative" method of adjusting used and useful plant. Expenses in addition to increased costs for electrical power and chlorine necessitated by the increased number of connections were not considered by the Public Service Commission to be material. Additional connections to the sewer system would involve some additional billing and service costs, though the difference in fixed costs for serving 42 connections and 26 connections is minimal.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that no adverse consequences be imposed upon the petitioner in its application for rate increases as a result of the quality of water and sewer service provided to its customers in Lake County, Florida. It is further RECOMMENDED that revenues not be imputed for 42 connections to the Morningview sewer system. Respectfully submitted and entered this 24th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Public Service Commission The Fletcher Building 101 East Gaines Street Tallahassee, Florida 32301 Anna Marie Norman 1219 LaSalida Way Leesburg, Florida 32748 Marilyn Smith 2924 North Porto Bello Avenue Leesburg, Florida 32748 Patti L. Wolf 2922 Alta Street Leesburg, Florida 32748 Anna P. Cowin 2913 North Porto Bello Avenue Leesburg, Florida 32748 Pam Angelillo 2922 Cocovia Way Leesburg, Florida 32748
The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
