Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing; the following facts relevant to the issue presented for determination are found: The prime complaint heard from petitioner's customers who testified at the hearing was the objectionable odor of the water received in their homes. The water was described as smelling like chlorine or like sewer, swamp or sulphur water. Such an objectionable odor affects the water's taste, and several customers testified that they were compelled to use filters to make the water bearable to drink. Another witness testified that the water tasted like quinine. Other complaints regarding the quality of water provided by petitioner to its customers included the presence of debris, such as sand, silt or dirt, in the water, the staining of white sinks by the water and inadequate water pressure. Complaints with regard to the service provided by petitioner to its customers were also voiced. These complaints included interruptions in water service without prior notice, the presence of air in the water lines and the necessity of making long-distance telephone calls to Orlando when inquiring about their bills. One customer testified that even though he had paid for a temporary disconnection of his water when he was away from his residence, he was still billed a minimum charge for service. Several customers testified that petitioner's office personnel failed to timely or adequately respond to their complaints or inquiries regarding their bills. Charles Sweat, the vice president of operations for petitioner's fifty- one systems in eight counties, visits each of the systems at least once a month. At the time that petitioner took over the operation of the Intercession City water system in 1977, the system was under citation by the Department of Environmental Regulation for inadequate chlorination of the water. The Department of Environmental Regulation does have a minimum requirement as to the amount of chlorine which must be added to the water. Petitioner corrected this deficiency and the citation was removed. Neither of the two water systems involved in this proceeding - Intercession City and Tropical Park - are presently under citation by any state or local regulatory agency. Analyses of monthly laboratory samples of water from the Intercession City and the Tropical Park systems indicate that the water quality will meet the Department of Environmental Regulation's secondary drinking water standards which went into effect on January 13, 1981. Petitioner now provides a toll-free telephone number which Osceola County customers may use to call Orlando. Notice of this toll-free number was included in the water bills sent to customers in September or October of 1980. A log is maintained by petitioner of all interruptions of water service. On one occasion occurring on March 3, 1980, there was a water outage. The outage was caused by low temperatures freezing the pressure switch at a time when it was at a high pressure level. When there was no pressure, the switch, being frozen, was incapable of sending an on-signal to the pump. It was necessary for petitioner to use torches to thaw out the pipes to make the system work properly. Cold weather sufficient to cause such an effect rarely occurs in Florida. On January 16, 1981, there was an interruption in service caused by the county cutting a water line. Another interruption of service occurred on January 18, 1981. This was caused by the malfunction of an air release valve which releases excess air from the pressure tank. Air was eventually caused to go into the distribution system and consequently into the homes of the customers. Petitioner's personnel have been instructed to watch this type of situation more carefully and more often. Petitioner's vice president of operations was not aware of recent complaints from customers concerning air problems, but testified that he would immediately and personally follow up on the problem.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of water service provided by petitioner to its customers in Osceola County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner in its application for a rate increase as a result of the quality of its service. Respectfully submitted and entered this 22nd 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 22nd day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue to be resolved in this proceeding concern whether the Petitioner, Gregory B. Taylor, violated the attendance policy of the St. Johns River Water Management District, the Respondent (District) thereby subjecting himself to a one day suspension.
Findings Of Fact The Petitioner was employed by the District as a customer service technician II. He has worked for the District for seven years and is assigned to the Division of CIS. He is supervised by Robert Green, and Robert Green's supervisor, the Division Director, Martin Barnes. The District has policies that govern work place conduct including attendance and leave. The District routinely informs employees of these policies that govern their workplace conduct through orientation meetings and discussions with supervisors. The policies are posted on the District's internet website and the Petitioner is aware of where to find these policies, by his own admission. The attendance policy provides that employees must be present on their job for the scheduled hours and the established workday and workweek unless absence from duty has been approved by the appropriate supervisor. Mr. Green testified that he has reviewed the District's attendance policies with the Petitioner. Concerning annual leave, the attendance policy provides that "except in emergencies, annual leave must have supervisory approval before being taken." District policy as to sick leave provides that sick leave shall only be used with prior supervisory approval. The District classifies absences as either planned or unplanned. Planned absences are those that are approved in advance, and unplanned are those for which prior approval has not been obtained. Each District work unit, including CIS, establishes practices to implement the means of obtaining prior approval for planned absences and reporting of unplanned absences. The policy for CIS employees for reporting unplanned absences is to contact the supervisor. If the employee cannot contact that supervisor then the employee is to contact the Division Director, Assistant Department Director, or Department Director, in that order of priority. Each District work unit may impose specific requirements with regard to the reporting of unplanned absences for the purposes of correcting behavior. The District written attendance policy provides that: If a department/office director determines that an employee is excessively absent based on a pattern of absences, such as regular absence on the day proceeding or following the employee's regular days off; . . . [or] continual use of sick leave as it is accrued . . .; the department/office director may take action to control such excessive absences. Such action may be taken only after the absences have been discussed with the employee and the plan to control the absences has been reviewed by the office of human resources. In December 2004, after several discussions and meetings with the Petitioner and after consulting with the District's office of Human Resources, Robert Green gave the Petitioner a memorandum regarding his attendance. The memorandum restated the attendance policy and, in order to control the Petitioner's excessive absences and failure to contact his supervisors regarding unplanned absences, the memorandum instructed the Petitioner to notify Mr. Green, or if Mr. Green was not available, the three other staff members at progressively higher supervisory levels, mentioned above. The memorandum explicitly instructed the Petitioner to contact the supervisors by phone. A little more than a month later, at the end of January 2005, Mr. Green conducted the Petitioner's annual performance evaluation. The "additional comments" section of that evaluation, before the space for the supervisor's and employee's signatures includes the following statement: hroughout this evaluation period I have counseled [Petitioner] on his tardiness during his scheduled working hours. Mr. Green testified that, in addition to the statement above, he counseled the Petitioner during the evaluation regarding the Petitioner's tardiness and failure to notify his supervisors when he was out and reiterated that the notification was to be made by phone. In February 2005, less than two weeks after the evaluation, and after additional unplanned absences and tardiness following the December 2004 memorandum, Mr. Green provided the Petitioner with a memorandum related to the Petitioner's tardiness and unplanned absences. This memorandum noted that an excessive number of unplanned absences and tardiness had become apparent and set forth 22 unplanned absences--the majority of which immediately preceded or followed regular scheduled days off. In addition, the memorandum reiterated that the Petitioner's habitual tardiness was unacceptable and provided examples. The memo concluded with the following paragraph, which re-stated the plan to control the Petitioner's excessive absences: You are expected to adhere to your regular work schedule. If you cannot, effective February 14th, at the beginning of your workday, you will notify me or Martin Barnes, Division Director of Computer Information Systems by phone when you will be absent or more than seven minutes late to work. Voice mail or e-mail is not an appropriate notification. Continued tardiness and unplanned absences will lead to disciplinary action. The Petitioner testified that he received the instruction, both in writing and orally, to call Mr. Green or Mr. Barnes. On November 4 and 7, 2005, a Friday and a Monday, the Petitioner was sick. On both days he failed to contact either Mr. Green or Mr. Barnes by phone. The Petitioner testified that upon his return to work, Mr. Green told him that he, Green, "appreciated" the fact that the Petitioner called the help desk when he was sick, and the Petitioner asserts that meant that Mr. Green approved of calling the help desk rather than Mr. Green. Mr. Green testified that he did say that he appreciated that the Petitioner had at least called in and then added that he made that statement after he stated that it was inappropriate to call someone other than him, and before telling the Petitioner (again) that notification should be made to Mr. Green directly. Mr. Green never communicated to the Petitioner, in a memo or otherwise, that the requirement that the Petitioner called his supervisors to report or request unplanned absences no longer applied to the Petitioner. Mr. Green established that the requirement that the Petitioner call in is consistently interpreted and applied throughout the CIS management. The Petitioner testified that he called in sick on November 4 and November 7 at 7:00 a.m. so that he could immediately return to resting. There was no testimony that the Petitioner called in later on either day and Mr. Green testified that neither he nor any other supervisor was contacted by the Petitioner. The Petitioner testified that he had, previous to November 4, 2005, attempted to call Mr. Green early in the morning and had been unsuccessful, implying that he did not call either Mr. Green or Mr. Barnes because they are not available by phone at 7:00 a.m. in the morning. Mr. Green attempted to call the Petitioner back when the Petitioner had been unable to reach him by phone in the early morning hours. Mr. Green is required to always have his cell phone on. He told the Petitioner that he was available by cell phone. Martin Barnes, Mr. Green's supervisor, confirmed that he requires Mr. Green to keep his cell phone on and with him at all times. At 7:00 a.m. Mr. Green is on his way to work and available at that time. The Petitioner admitted that he had never called Mr. Barnes's cell phone. Mr. Barnes testified that his office phone is forwarded to his cell phone so that he is available almost 24 hours a day. The Petitioner's normal work day concludes at 4:00 p.m. On November 22, 2005, the Petitioner sent an e-mail to a group of recipients, "IR Management," that included Martin Barnes, the CIS Division Director, and Kevin Brown, Mr. Barnes supervisor, requesting authorization to leave work early. The Petitioner made his request at 2:17 p.m. and left work at 3:15 p.m. In between the time that the Petitioner made his request and the time he left, the Petitioner was away from his desk and unavailable by e-mail. Robert Green was not working at the District that day. Accordingly, the next person to whom the Petitioner was directed to seek approval for leave was Martin Barnes. Shortly after the Petitioner sent the e-mail, Kevin Brown replied by e-mail. Rather than grant permission, the body of the message stated: "Please address this with Martin." Mr. Brown's instruction to contact Mr. Barnes was given even though the e-mail Brown received was also clearly addressed to other members of "IR Management," including Mr. Barnes. The Petitioner did not call Mr. Barnes by phone. Rather, the Petitioner stated, "I knew in my mind that I had already contacted Martin Barnes concerning this and that I had not been notified by anyone in management saying this would be unacceptable." The Petitioner's unilateral use of a negative notice procedure directly conflicts with specific instruction he received to contact supervisors by phone. It also is not in compliance with the instruction, provided after the Petitioner had already e-mailed Mr. Barnes, that he address leaving work early with Mr. Barnes. Although the Petitioner referred to other e-mails that purportedly evidenced use of this procedure by the Petitioner and other employees, he failed to produce any such e-mails or any corroborating evidence. The testimony of Ms. Hudson and Mr. Green was that phoning was the only acceptable method of communicating for the Petitioner. Further, the phone requirement was the result of a plan to control the Petitioner's tardiness and excessive absences, not directed toward the issue of other employees' attendance. The District's disciplinary action policy describes "absence without authorized leave" as: Failure to obtain prior approval for absence from work, except in the case of an emergency; failure to notify the proper supervisor in a timely or appropriate manner of intended absence from work; or obtaining leave based on a misrepresentation. On December 8, 2005, the Petitioner was provided with a letter from the District's executive director that informed him that the District intended to suspend him for one day without pay for being absent without leave. The letter, dated December 7, 2005, indicated that the intended suspension was based on the District's findings that: (1) the Petitioner failed to properly report his absence from work on two consecutive work days (November 4 and November 7) and that (2) the Petitioner failed to properly secure authorization to leave work early (on November 22). The District's director of human resources established that either of these two bases would serve independently as a basis for the disciplinary action taken. The Petitioner was notified in the letter that he could request a pre-determination conference for the purpose of presenting information to the executive office that would support a decision not to suspend the Petitioner, before a final decision was made regarding the intended disciplinary action. The Petitioner did not request a pre-determination conference. On December 27, 2005, the Petitioner was provided with the second letter from the District's executive director informing the Petitioner that, given the facts recited in the December 7, letter and given that the Petitioner had not taken the opportunity to be heard as to those facts, that he would be suspended for one day. That letter also stated that the Petitioner had the right to appeal the executive director's decision through the administrative hearing process pursuant to Chapter 120, Florida Statutes. Under the District's disciplinary action policy, the failure to properly notify the appropriate supervisor of an intended absence, in this case either because the employee is sick or seeks approval for leaving his work station early, constitutes an absence without authorized leave. The appropriate discipline level for being absent without leave ranges from reprimand to dismissal. The District has terminated employees for repeated occurrences of absence without leave. The District tends to take the least severe disciplinary action needed to correct behavior. However, when an employee's behavior does not respond, the severity of the discipline is progressively increased. Under District practice, violations of District policies are considered cumulative. All previous disciplinary actions, whether for the same or a different violation, are considered in determining which disciplinary action to impose. The Petitioner has a previous reprimand in his personnel file for insubordination. The Petitioner has also been counseled by memo, evaluation, and meetings before November 2005, regarding his lack of adherence to District attendance policy. Both the history of counseling and informal corrective action for the particular behavior, absence without authorized leave, and the previous formal reprimand for an unrelated violation were considered in determining the appropriate level of disciplinary action in the case at bar. When asked what remedy he sought the Petitioner at the hearing stated: "I only ask that the disciplinary action be removed from my personnel file." The Petitioner did not identify an applicable exemption from Florida's broad public records laws or document retention schedules that would support the removal of an agency's final action from the agency's files.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the St. Johns River Water Management District enter a final order suspending the Petitioner from work for one day without pay. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of August, 2006. COPIES FURNISHED: Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529 Gregory B. Taylor Post Office Box 1514 Palatka, Florida 32178-1514 William Abrams, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177-2529
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
