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OSCEOLA COUNTY vs SOUTH BREVARD WATER AUTHORITY, 91-001779 (1991)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Mar. 22, 1991 Number: 91-001779 Latest Update: Jun. 12, 1992

The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.

Florida Laws (7) 120.52, 120.57, 27.15, 373.019, 373.042, 373.069, 373.223 Florida Administrative Code (1) 40C-2.301

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WILLIAM NASSAU vs VERNON AND IRENE BECKHAM, UTILITIES COMMISSION OF NEW SMYRNA BEACH, VOLUSIA CITY-COUNTY WATER SUPPLY AUTHORITY, AND ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, 92-000246 (1992)

Division of Administrative Hearings, Florida Filed:New Smyrna Beach, Florida Jan. 16, 1992 Number: 92-000246 Latest Update: Jun. 12, 1992

The Issue The disputed issues are as follows: Whether the proposed Water Conservation Plan is sufficient to meet the requirements of the District rule; Whether the proposed pumping will adversely affect wetlands and wetland vegetation in contravention of District rule; Whether the permit applicant has provided reasonable assurance of entitlement to the requested permit as required by the District rule; and What limiting conditions pursuant to Rule 40C-2.381, F.A.C., should be imposed on the Consumptive Use Permit (CUP).

Florida Laws (8) 120.57, 163.01, 373.019, 373.042, 373.069, 373.223, 403.412, 7.62 Florida Administrative Code (2) 40C-2.301, 40C-2.381

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DEPARTMENT OF ENVIRONMENTAL REGULATION vs. LEX THOMPSON, D/B/A HIGH BLUFF ACRES SUBDIVISION, 85-001184 (1985)

Division of Administrative Hearings, Florida Number: 85-001184 Latest Update: Nov. 04, 1985

The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

Florida Laws (5) 120.57, 403.851, 403.859, 403.860, 403.861

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BROWARD COUNTY vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-001048 (1980)

Division of Administrative Hearings, Florida Number: 80-001048 Latest Update: Jan. 20, 1983

Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.

Florida Laws (6) 120.57, 120.60, 253.12, 403.087, 403.182, 90.803

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PALM BEACH POLO HOLDINGS, INC., AND WELLINGTON COUNTRY PLACE PROPERTY OWNERS ASSOCIATION, INC. vs ACME IMPROVEMENT DISTRICT AND SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 03-002469 (2003)

Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jul. 07, 2003 Number: 03-002469 Latest Update: Jun. 07, 2004

The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).

Florida Laws (8) 120.569, 120.57, 120.595, 120.62, 17.66, 373.413, 373.416, 57.105

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SANTA ROSA SOUND COALITION vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 01-001465RP (2001)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 13, 2001 Number: 01-001465RP Latest Update: Jun. 06, 2003

The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.

USC (2) 33 U.S.C 1251, 33 U.S.C 1313 CFR (4) 40 CFR 122.41, 40 CFR 130, 40 CFR 130.7(b), 40 CFR 130.7(b)(5) Florida Laws (24) 119.07, 119.15, 120.52, 120.536, 120.54, 120.56, 120.569, 120.57, 120.68, 216.311, 373.309, 373.414, 373.4145, 373.4592, 403.021, 403.031, 403.061, 403.062, 403.067, 403.086, 403.0885, 403.804, 403.805, 934.02

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SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL vs FLETCHER HOLT, 00-001201 (2000)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Mar. 20, 2000 Number: 00-001201 Latest Update: Sep. 05, 2000

The Issue The issue for consideration in this matter is whether Respondent’s license as a water well contractor should be disciplined because of the matters alleged in the Administrative Complaint and Order entered herein by the District.

Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District (SWFWMD) was the state agency responsible for the conservation, protection, management, and control of water resources within its boundaries, and consistent therewith, the licensing of water wells therein; and for the licensing and regulation of water wells and water well contractors within the district. The three wells in issue herein were within the jurisdiction of the Petitioner, and Respondent was a water well contractor licensed by the District. On June 4, 1998, Respondent signed a contract with Karen Anne Grant, to drill a four-inch domestic water well on her property located at 33442 Larkin Road, Dade City, Florida. The property, on which Ms. Grant was building a residence, was a part of a pre-existing citrus grove. After application by the Respondent, SWFWMD issued WCP No. 606175.01 to him on June 1, 1998, and Respondent began construction of the well on June 15, 1998. His application reflected the well was to be drilled using the cable-tool method. Construction was completed on the well on or about July 7, 1998, but because the well was vandalized during construction by the dropping of an unknown substance (probably a piece of casing) down the well, the well was unsatisfactory and was not used. Respondent attempted to repair the well but was unable to do so. Respondent claimed the well was unusable and he would have to drill another one. Although he did not obtain a permit to close the well, he subsequently did so. He was paid $5,375.00 to dig this Well (No. 1). Because of the failure of Well No. 1, Respondent applied to the District for and received WCP No. 613349.01 on December 9, 1998, to construct a second four-inch water well on Ms. Grant's property. This was Well No. 2. He began construction that day and completed it on January 27, 1999. From the time of its initial use, Well No. 2 produced water which contained unacceptable amounts of sediment, debris, and sand. In addition to the unsatisfactory quality of the water it produced, Well No. 2 also failed to produce a sufficient quantity of water for domestic potable water use or grove irrigation. Respondent admitted to Ms. Grant that Well No. 2 was not satisfactory for grove irrigation, and in an effort to fix the water quality problem, installed a sand filter and sedimentation tank. Well No. 2 was not properly closed. It was covered with a PVC cap instead of a tamper-resistant watertight cap or valve as required, and Respondent did not properly seal the upper terminus of the well. Without obtaining a third WCP, on February 25, 1999, Respondent started construction of a third well on the Grant property. Respondent contends WCP No. 613349.01, pulled for Well No. 2, was not for that well but for Well No. 3. He argues that the second well was so close to the first well that he did not feel another permit was required. Though Well No. 3 was completed and produces water, the water quality is poor. It contains sand, sediment, debris, and rock, which results in clogging of plumbing fixtures at the Grant home. In addition, the volume of water produced is insufficient for comfortable home use. Well No. 3 is open down to 178 feet below land surface, beyond which point it is obstructed by sand. Use of a diagnostic tool available to the District reveals that the sand seems to be coming from around the well casing. Ms. Grant initially contracted with Respondent to dig her well in June 1998. Although Petitioner disputes it, the location of the well near the new house she was building was, she claims, by mutual agreement. Respondent did not express any dissatisfaction with the location of this or either of the other wells, He said he was familiar with the area and had worked all around there. Respondent started work on Well No. 1 on June 15, 1998 and it was completed on July 2, 1998. The house was not yet completed, and electric service had not been installed, though it was being arranged for. Before the well could be put in operation, however, Respondent claimed it was vandalized and his equipment, which he had left at the site, stolen. At this point, Respondent told Ms. Grant that he had run into an obstruction which he believed was pipe which had been dropped into the well at more than 100 feet. He said he had tried to get it out, but could not, and had to drill another well. The casing of Well No. 1 was not cut off at that time. Ms. Grant later discovered it had been cut off and plugged, but she does not know who did that. Ms. Grant used Well No. 2, which was located about 20 to 30 feet west of Well No. 1, for just about two months but was never satisfied with the amount or quality of the water it produced. Not only was the water quality low, but there was also insufficient volume for grove irrigation, one of the intended uses of which she had advised Respondent. When Grant complained to Respondent about the water quality, he suggested she run hoses constantly to clear the sand out. In February, 1999, just after Ms. Grant contacted the District to complain, Respondent said he would come by to cap Well Nos. 1 and 2, and start Well No. 3. On February 25, 1999, Respondent started Well No. 3 at a site about 200 feet north of Well Nos. 1 and 2, agreed upon by the parties after some discussion, and on March 5, 1999, he completed it. Respondent billed Ms. Grant $3,271 for this well, in addition to the $5,375 paid for Well No. 1 and the $4,585 paid for Well No. 2. Whereas the builder paid for the first two wells, Ms. Grant paid for Well No. 3, but she had the same problems with Well No. 3 that she had had with the prior two wells. An irrigation company called in to see what could be done to get water to the citrus grove indicated there was too much sediment in the water and not enough flow. About a year after Well No. 3 was completed, the Grants noticed the water pressure was dropping, and when they went to the well site, they noticed the pump was constantly running. As a result, they called another well driller who pulled the pump and replaced the impellers. After that, Ms. Grant contacted Respondent about the fact that the wells he had drilled had never worked properly. All he would recommend was to keep the hoses running. He indicated he would try to develop the well to rid it of debris but when he tried, he was unsuccessful. As a result of the situation with the three wells, the Grants had no water to their home; the pumps they installed were destroyed; they were unable to irrigate their 8-acre citrus grove; they suffered a resultant loss of income; and, they were forced to drill a fourth well. When Well No. 1 was closed, the casing was cut off at or below ground level. It did not extend one foot above the land surface, nor was the casing capped or sealed with a tamper- resistant watertight cap or valve. Examination of the well site by Sharon Lee Vance, then a technician IV for the District, on May 25, 1999, based on a complaint filed by Ms. Grant, revealed that the water quality was poor - cloudy with excessive sand and rock particles. Ms. Vance tried to contact Respondent, whose name appeared on the permit as contact, by phone but always got his voice mail. Though she left messages requesting him to call back, he never did. Ms. Vance went back to the Grant site in July 1999 in the company of other District personnel. At this visit, Ms. Vance learned there were two wells. She located both and found that Well No. 1 was buried. When she first saw that well, she noted that it had been cut off below the surface, a fence post had been driven into the top, and the well had been buried. In Ms. Vance's discussions with Ms. Grant about this well, Ms. Grant categorically denied she was the one who cut off the top of Well No. 1 or buried it. She does not have access to the cutting equipment used to cut off the top of the well. Such equipment, however, is commonly used by well contractors. It was obvious to Ms. Vance that Well No. 1 had several problems. It was clearly not suitable for its intended use because it was cut off below ground level and was obstructed. It had not been properly abandoned. Though she dug down approximately one-and-a-half feet all the way around the casing, she could find no evidence of bentonite or any other approved closing medium. Even though Respondent now claims the second permit he pulled was not for Well No. 2 but for Well No. 3 instead, the permit itself appears to authorize the construction of Well No. Ms. Vance found several problems with this well, also. It was not properly sealed with bentonite or any other properly approved closure medium; a PVC cap had been applied to the top instead of a waterproof or tamperproof cap, and the PVC cap was cracked; the well was not suitable for its intended purpose because it was obstructed and produced both insufficient and poor quality water; and it was not properly abandoned. Ms. Vance observed a metal plate placed around the well top. She does not know what purpose it was to serve, but based on her experience and her examination of the site, she believes it was placed there to keep the casing from falling into the well. Notwithstanding, Ms. Vance's opinion that the second permit was for Well No. 2, Respondent contends he believed the permit for Well No. 1 was adequate to permit drilling of Well No. 2 without a new permit. Though his belief is incorrect, he admitted to obtaining a permit for Well No. 3. Therefore, it is found that Well No. 2 was not properly permitted. Well No. 3 was permitted. The water in Well No. 3 was not of good quality. She examined the sand filter which had been installed by the Respondent and found it to be full of sand. So was the settling tank. She also noted debris and unusual sediment around the well head. Based on water samples taken at the well, and the observations made, it was clear to Ms. Vance that the well was not properly seated and was pumping sand. Further, the well casing did not extend down to the static water level, and the well was not properly permitted. Ms. Vance further noted that the water from Well No. 3, in addition to the excessive sand, also had large pieces of rock and chunks of clay in it. This was unusual and indicated to her that there was a problem with the well's construction. The casing integrity as not good, which permitted an infusion of contaminant into the well. This condition is not unusual during the first day or so of a well's operation, but it usually clears up after that. In this case, it did not. Ms. Vance admits she does not know who cut Well No. 1 off below ground level. She knows the well was not properly abandoned as required by rule, however, because it was not properly grouted with neat cement grout or bentonite. She dug down beside the well for a total of two and a half feet without seeing any evidence of grout or bentonite. The fact that the well had pipe dropped into it, and the existence of the cutting off of the pipe below ground, made it inappropriate for the intended purpose of providing water for the home. Ms. Vance she does not know who cut off the pump; Ms. Grant does not know who cut off the pipe; and Respondent denies having done it. Though the work was clearly done by someone with access to well drilling tools, Respondent was not the only driller to work at the site. Therefore, it cannot be found that Respondent cut the pipe off below ground. It is clear, however, that Respondent failed to properly abandon and close Well No. 1, when he found it unusable, and it was his responsibility to do so. Well No. 2 also was not properly sealed by Respondent, according to Ms. Vance. A proper seal would include a good cap, not a cracked PVC cap, which would suffice only as a temporary cap. A proper cap would be one that is water tight and could not be readily removed. Ms. Vance admits she does not know who cracked the existing cap - only that it is cracked. This well, too, did not produce water fit for its intended purpose because of the existence of the tools which had been dropped into it. A permit was not obtained to abandon it. Under all these circumstances, Ms. Vance did not attempt to determine if it would produce sufficient water. Finally, Ms. Vance concluded that Well No. 3 was not properly seated. According to rule, the casing has to seat to or below the static water level. Based on the debris in the water drawn from this well, she was satisfied this well was not properly cased. Mack Pike, a water resources technician III for the District, does much of the well logging for the District. The equipment he uses goes to the bottom of the well and shows the diameter up to the point where the casing usually starts. Among other items, he uses a camera, which is what he used on the wells in issue here. On July 22, 1999, he went to the Grant property to look at Well Nos. 1 and 2. His first efforts to get into these wells were unsuccessful, so he stopped his effort and returned on May 10, 2000 with the camera. On May 17, 2000, he also ran the camera down all three wells. In Well No. 3 he found the pump at 176 feet. He found Well No. 1 cut off about one and a- half feet below ground level, with a log jammed into the casing top down to the level of the casing. The pipe had been cut with a torch, but the casing had not been properly sealed with bentonite. Use of the log to stuff the pipe was an improper seal. He found the well open below the log down to 128 feet, but obstructed below that. There was no water in the well. Respondent adamantly insists he used bentonite in all three wells, but since no trace of it was found in any of the wells by Mr. Pike or Ms. Vance, it is found that he did not. At Well No. 2, Mr. Pike found a welded slab around the pipe to keep the casing from falling in. The cap was cracked and was no good. The camera showed the well was closed off. He hit sand at 158 feet. The presence of sand indicated to Mr. Pike that the casing was not properly sealed. The well was unusable. Mr. Pike did not examine Well No. 3 until after he opened the sediment tank and found sand which appeared to have come from the surface. If the casing had been properly sealed, there should have been no surface sand. This means that the well was not properly seated. Respondent has been a licensed well contractor since 1989 and has drilled approximately 300 wells since that time. Though he claims he suggested alternate locations for the wells to Ms. Grant, she insisted the well be placed near her irrigation line. Respondent claims he was against this because the site was a transition area which raised the possibility of the pipe bending. Notwithstanding the advice he got from others regarding the siting of the wells, he agreed to place the well where Ms. Grant wanted it. Respondent claims he dug the first well and installed the pump, but the power was insufficient to run it. As a result, he pulled out the pump and told Ms. Grant that when she got the proper power to run it, he'd come back and reinstall the pump. It was when he returned to the site in response to her call that he found that the site of Well No. 1 had been vandalized. Though he recommended the well be abandoned, Ms. Grant did not want to do that, so he moved over 20 feet and started to drill again. He categorically denies having cut off the casing of Well No. 1 below ground level. It has been found that the evidence shows Respondent that cut the pipe on Well No. 1, is insufficient. Mr. Holt admits he did not seek a permit for this second well because his understanding was that one could drill like wells on the same premises without abandoning the pre- existing wells. He drilled the second well which, he claims, produced water for five to six months. However, it was impossible to stop the sand from infiltrating the well, and the well was not producing sufficient water to irrigate the grove. Because the water produced by Well No. 2 was insufficient in quantity to use the 5-horsepower pump called for in the contract, Respondent replaced it with a one and a-half horsepower pump. According to Respondent, he and Ms. Grant discussed where to site Well No. 3. Finally, Ms. Grant agreed to move it up the hill on which Respondent wanted to site it, as this would accommodate her irrigation system. Respondent was not comfortable with this because it was on the slope too close to the others, but he went along with it. As Well No. 3 was being constructed, Respondent discussed with Ms. Grant the need to close Well Nos. 1 and 2. She did not want to pay for the closings, so he decided to cap the existing wells. As a result, Well No. 2 is still a viable well, and though it will not irrigate the grove, it will, Respondent claims, provide sufficient water for the house. He admits placing the PVC cap on Well No. 2, but claims it was not cracked when installed. He also admits to placing the plate around the top of Well No. 2 because the drive shoe was bent. It broke off, and he was afraid if he did not reinforce the area as he had the casing would collapse when he tried to ream out the drive shoe to recover it. At the 126-foot mark of Well No. 3, Respondent hit a boulder through which the drill would not go. At that time, the hole below the casing was still good with no infusion. Respondent installed a pump and drew water, but, the pump soon began to pull sand. Respondent installed a filter, but it was insufficient. He ultimately drilled through the rock and placed the pump at 178 feet. That well is currently being used. Respondent claims that all wells in that area pull sand to some degree. He insists that Ms. Grant's wells just pull too much. He claims he could have quit, but because of his relationship with the builder, he felt obligated to drill a working well for Ms. Grant. Anthony Gilboy, who has been with the District for 20 years, is currently the District's manager of well construction. He is familiar with the statutes and the rules of the District relating to water well construction and abandonment. According to Mr. Gilboy, they are loose enough to permit some latitude in their application. There is a freedom to amend methodology where circumstances so dictate. A licensed water well contractor is required to obtain a permit to construct a water well. Once a permit is drawn, if the well needs to be changed, the permittee must apply for an amendment and then plug the old well consistent with District guidelines. Plugging is critical to prevent potential contamination of water and to preserve it. Rule 40D-3.042, Florida Administrative Code, permits multiple (up to 8) wells under a single permit for similar types of wells that have diameters of 4 inches or less, but not domestic water wells. There are different ways to drill a water well. One is by cable-tool drill in which a bit is hammered into the rock. As the casing is being driven down into the ground, it holds back the sediment. Another method involves the use of a rotary drill which employs water and bentonite to hold back sediment. It is possible to tell whether bentonite was used in the drilling process just by looking at the well. The bentonite adheres to the well casing and looks different from the surrounding soil. In fact, there is no soil appearing naturally in Florida that looks like bentonite. In the instant case, Respondent applied to use the cable-tool method. Bentonite traces were not found at the sites. When a well is drilled, the casing is to be poured in segments as drilling progresses. When a well is to be abandoned, one approved method of doing so involves the use of bentonite, a type of clay which swells to about 10 to 15 times its volume in dry form. Studies done by the District in conjunction with the University of Florida show that over all, bentonite is a better seal than natural soil, and it prevents surface water from settling down the side of the casing. Rule 40D-3.517(3), Florida Administrative Code, requires bentonite's use for this purpose, and a rule of the Department of Environmental Protection, though not specifically mentioning bentonite, requires that casings be sealed. The casing of a water well is used to seal off any unconsolidated materials. Rule 62-532, Florida Administrative Code, requires the casing be extended into the static water level at the time the well is drawn. If a well is not sealed, debris and sand can slide into the well and damage the pump and other equipment. If debris is seen, it usually means the casing was not sealed properly. After a well is completed, the rules of the District and the Department, Rules 40D-3.521(2) and 62-532.500(3)(a)4, Florida Administrative Code, respectively, require the upper part of the well to be sealed off to prevent infusion of contaminants. The seal must be tamper-proof and permanent. A fence post is not acceptable, nor is a cracked PVC cap. In addition, the upper terminus of a private well must extend at least 1 foot above the land surface. The purpose of this requirement is to allow the well to be found, and to prevent infusion of contaminant. (Rule 40D-3.53(2), Florida Administrative Code) According to Rule 62-532-500(4), Florida Administrative Code, all abandoned or incomplete wells must be plugged from top to bottom with grout (neat cement). The Rule and Stipulation 39 of the permit provide that the well drilling contractor is responsible for proper abandonment of a well. This is not conditioned on the willingness of the owner to pay. The contractor has the responsibility to do it. An abandoned well is one which the use of which has been permanently discontinued or which is so in need of repair as to be useless. These determinations must be made by the District, hence the need for the permit. In the instant case it was determined that Well Nos. 1 and 2 were not suited for their intended purpose, and they should have been properly abandoned. The process for well abandonment is not complex, but it does require the obtaining of a permit. At least 24 hours in advance of initiation of the plugging process, the contractor must advise the District that the process will be implemented. Thereafter, the well hole is filled with neat cement or bentonite grout. To abandon a well by any other method would require a variance from the District. Neither permit nor variance was sought as to Well Nos. 1 and 2. The standards adopted by the Department and the Water Management Districts are statewide in application. Construction of a water well without first obtaining a permit is classified as a major violation. The failure to properly abandon a well or the failure to use bentonite or neat cement in well closure are also major violations. Failure to construct a well so that the casing extends below the static water level is a major violation. Failure to seat or seal a casing into rock formation is a major violation. Failure to place a water-tight seal and failure to extend well casing at least one foot above the ground level are both major violations. Penalties may be assessed for these violations according to a schedule set out in the Department rules. However, these penalties may be adjusted based on such factors as the economic benefit to the contractor of his non-compliance; his history of non-compliance; the negligence or willfulness of his actions; and whether he acted in good faith. Under the circumstances of this case, Mr. Gilboy is of the opinion that the actions proposed by the District are appropriate.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Fletcher Holt be ordered to pay an administrative fine of $4,600; that 46 points be assessed against his water well contractor's license; and that he be required to properly abandon Well Nos. 1, 2, and 3, which he drilled on the Grant property. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 18th day of July, 2000. COPIES FURNISHED: Onofre Cintron, Esquire 305 North Parson Avenue Brandon, Florida 33510 Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000

Florida Laws (1) 120.57 Florida Administrative Code (5) 40D-3.041, 40D-3.042, 40D-3.517, 40D-3.521, 62-532.500

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FRIENDS OF SAINT SEBASTIAN RIVER vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 01-001466RP (2001)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 13, 2001 Number: 01-001466RP Latest Update: Jun. 06, 2003

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CYNTHIA VALENCIC vs DEPARTMENT OF ENVIRONMENTAL PROTECTION AND SARASOTA COUNTY, 01-003535 (2001)

Division of Administrative Hearings, Florida Filed:Sarasota, Florida Sep. 06, 2001 Number: 01-003535 Latest Update: Jun. 07, 2004

The Issue The issue is whether Sarasota County's application for a permit authorizing the construction of a Class V, Group 3 aquifer storage and recovery well system at the Central County Water Reclamation Facility in Sarasota, Florida, should be approved.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. 160882-001- UC authorizing the County to construct one Class V, Group 3 aquifer storage and recovery injection well and monitor well system in Sarasota County, Florida. DONE AND ENTERED this 19th day of April, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 19th day of April, 2004.

Florida Laws (6) 120.569, 120.57, 120.595, 403.064, 403.0881, 403.412

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SAVE OUR SUWANNEE, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 01-001797RP (2001)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida May 07, 2001 Number: 01-001797RP Latest Update: Jun. 06, 2003

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