The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
The Issue Whether Respondent, John J. D'Hondt, as a licensed operator, should be disciplined for violations of Florida Administrative Code Rule 62-602.650(2), (4) and (4)(f).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is the State agency vested with the responsibility of regulating Florida's air and water resources, administering Chapter 403, Florida Statutes (2006), and the rules promulgated in Florida Administrative Code Rule Chapter 62. Petitioner has the statutory authority to establish qualifications; examine and license drinking water and domestic wastewater treatment plant operators and to place an operator on probation; and issue, deny, revoke, or suspend an operator's license pursuant to its rules. Respondent is the owner, supplier of water, and licensed operator of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants located in Volusia County, Florida. He holds Certified Operator Drinking Water License No. 0000542 and Certified Operator Wastewater License No. 0006032. The Volusia County Health Department is a county health department that has been approved by Petitioner pursuant to Subsection 403.862(1)(c), Florida Statutes (2006), to enforce Chapter 403, Florida Statutes (2006), and the rules promulgated for the State's drinking water program for Volusia County. As a result of not having received Respondent's September 2004 MOR, by letter dated October 20, 2004, the Volusia County Health Department notified Respondent that MORs were to be submitted to the Volusia County Health Department by the tenth of the month following the month of operation. The November 2004 MOR was to have been submitted to the Volusia County Health Department by December 10, 2004. Respondent signed and dated the November 2004 MOR on December 12, 2004; it was received by the Volusia County Health Department on December 27, 2004. The December 2004 MOR was to have been submitted to the Volusia County Health Department by January 10, 2005. On February 4, 2005, Respondent was sent a late reporting violation letter stating that the December 2004 MOR had not been received. This letter again reminded Respondent that MORs were to be submitted within ten days after the month of operation. The December 2004 MOR was received on February 11, 2005. The April 2005 MOR was to have been submitted by May 10, 2005. Respondent signed and dated the April 2005 MOR on May 17, 2005. It was received on May 27, 2005. The September 2005 MOR was to have been submitted by October 10, 2005. It was received on October 18, 2005. The November 2005 MOR was to have been submitted by December 10, 2005. It was signed and dated December 14, 2005, and received on December 19, 2005. Respondent did not timely submit MORs for the months of November 2004, December 2004, April 2005, September 2005, and November 2005. In 2004, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent maintained a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was informed that he was required to keep a separate operation and maintenance logbook for each of the drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that there was a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was again informed that he was required to keep separate logbooks for each plant. A non-compliance letter dated October 12, 2004, and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he needed to separate his operation and maintenance logbook. In 2005, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined logbook for the drinking water and domestic wastewater treatment plants. During the inspection, Respondent was again informed that he was required to keep a separate operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was keeping a combined logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to keep separate logbooks. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent again informing him that he was required to maintain separate logbooks for the drinking water and domestic wastewater treatment plants. On February 13, 2006, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to maintain a separate logbook for each plant. Over the extended period reflected by the inspections cited in paragraphs 11 through 15, Respondent failed to maintain separate logbooks for the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that the logbook did not contain sufficient entries of the performance of preventative maintenance and repairs or request for repairs of equipment. During this inspection, Respondent was informed that he was required to keep adequate entries of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. A non-compliance letter and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he was required to maintain entries of the performance of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was not keeping adequate entries of the performance of preventative maintenance or repairs for the domestic wastewater plant. During this inspection, Respondent was again informed that he was to keep such entries. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent informing him that he needed to maintain such entries for the domestic wastewater treatment plant. Photocopies of the combined logbook have essentially no entries for the performance of preventative maintenance or repairs or requests for repairs to a domestic wastewater treatment plant. Infrequent margin notes are not decipherable and do not differentiate between the two activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of John J. D'Hondt, as a Certified Operator Drinking Water and a Certified Operator Wastewater, be disciplined as set forth in the "probation" letter of March 15, 2006. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of February, 2007. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John J. D'Hondt 2 Tropic Wind Drive Port Orange, Florida 32128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, Acting General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Petitioner's application to sit for the water well contractor examination should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On January 9, 2004, Petitioner, who resides in Baker County, Florida, filed his application with the District requesting that he be allowed to sit for the water well contractor examination. The requirements for qualification to take the examination are set forth in Florida Administrative Code Rule 62-531.300. Relevant to this controversy is the requirement that an applicant present "satisfactory proof of two years experience in the water well construction business." This requirement is normally met by the applicant providing a list of at least ten water well jobs he has completed during a consecutive 24-month period (together with their locations, major use, and approximate depth and diameter), the name and address of the owner of the well, and the approximate date the activity took place. See Fla. Admin. Code R. 62-531.300(6)(a). If the work has been completed in Florida, the applicant is also required to submit copies of completion reports for each of the ten wells. Id. Completion reports are filed by the contractor with the District within thirty days after the work is completed. See Fla. Admin. Code R. 40C-3.411. Finally, the applicant must submit letters from three persons attesting to the length of time the applicant has been working in the water well construction business as a major activity. See Fla. Admin. Code R. 62-531.600(6)(a). Alternatively, an applicant may present "satisfactory proof of equivalent experience," which may be accepted by the District "on a individual basis." See Fla. Admin. Code R. 62- 531.300(6)(b). While this option has rarely, if ever, been used by any applicant, at hearing the District suggested that this provision would allow an applicant to submit other credible documentary evidence, such as affidavits, attesting to the applicant's equivalent experience. Mr. Julian C. Varnes, Jr., a District water resource representative III, is in charge of reviewing water well contractor applications in four northeast Florida counties, including Baker County. Mr. Varnes reviewed Petitioner's application and concluded that he had failed to submit proof of two years' experience in the water well contracting business or satisfactory proof of equivalent experience, as required by the rule. In this case, Petitioner submitted ten completion reports with his application, but none of the reports indicated that he had been involved on those projects, and Petitioner acknowledged at hearing that he could not recall if he was even present on the job site. This is probably because the reports related to jobs performed between November 10, 1982, and July 31, 1985, by his father, a licensed water well contractor, when Petitioner was less than fifteen years old. In addition, the reports submitted by Petitioner covered work performed over a 32-month period, rather than over a 24-month period, as required by the rule, and some of the reports did not have the complete address of the location of the well. By letter dated February 4, 2004, the District advised Petitioner that his application was deficient because he had failed to submit the information required in Florida Administrative Code Rule 62-531.300(1)(b) and (6) relative to experience. The letter advised Petitioner that he must submit an "acceptable list of ten wells together with their completion reports, for wells that [he had] constructed, repaired, or abandoned, with completion dates distributed over a consecutive 24-month time period." Further telephonic discussions between Petitioner and District personnel concerning the request for additional information occurred on March 25 and 29, 2004, but they did not resolve the District's concerns. On June 15, 2004, the District staff again notified Petitioner in writing that he must submit the requested information within 30 days or his application would be denied. When no response was received from Petitioner, on July 27, 2004, the staff issued a Technical Staff Report recommending that the application be denied because of Petitioner's failure to comply with the requirements of Florida Administrative Code Rule 62- 531.300(1)(b) and (6). On August 23, 2004, a Notice of Staff Intent to Recommend Denial of Water Well Contractor Application No. 7300 and Notice of Rights was issued by the District. Petitioner's request for a hearing was then filed. After his first request for a hearing was dismissed, on November 18, 2004, Petitioner filed an amended request for a hearing. In that request, he alleged that the District was "not capable of locating completion reports filed by [Petitioner] and/or his father"; that the experience of he and his father was well known to two District staffers; that he had purchased a well drilling company from another individual and operated under the seller's license for over a year; that he is entitled to licensure because he has satisfactory equivalent experience; and that his father has paid all outstanding fines previously imposed by the District. As relief, Petitioner has requested that he be allowed to take the contractor's examination. At hearing, Petitioner explained that his father was in the water well contracting business for twenty years, and that beginning in 1983, when he was thirteen years old, he had helped his father on "hundreds of jobs" until his father's retirement in 1994. However, Petitioner cannot recall the names and addresses of customers who were serviced by his father's business, which is necessary in order for the District to retrieve completion reports presumably filed by his father. Because of the large number of completion reports filed by contractors throughout its multi-county jurisdiction, in order to retrieve one, the District must have the following information: the year the job was completed, the county in which the job was performed, and the address (township and range) of the well's owner. Petitioner is unable to provide this information.1 In addition, Petitioner stated that he had purchased a water well contractor's business (from Tim Johnson) shortly after his father retired in 1994 and that he operated the business under Mr. Johnson's license for a little more than a year. Although Petitioner produced no documentation concerning jobs he may have performed under Mr. Johnson's license, even if he had, that work would still constitute less than 24 consecutive months of experience, as required by the rule. Petitioner further asserted that Mr. Varnes, who oversees the water well contractors in Baker County, personally "knows" that he is an experienced well driller (having gained such experience through working for his father for many years) and that he possesses the skills necessary to take the examination. However, Mr. Varnes did not agree with this assertion. Finally, Petitioner asked that he be allowed to take the examination, which would be the best indicator of whether he possesses the necessary knowledge to be a contractor. He also pointed out that each completed project must be inspected by a District employee, and that such inspections would verify and ensure that his work is satisfactory. However, the rules require that before the examination can be taken, certain requirements must be met. Petitioner has not satisfied those requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order denying Petitioner's application to sit for the water well contractor examination. DONE AND ENTERED this 25th day of January, 2005, 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 25th day of January, 2005.
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell, was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for Consumptive water use permit has been filed in proper form by Pat Nathe Groves, Inc., and admitted into evidence as Exhibit A. The water source is an existing well located on a 40-acre tract of land in Pasco County within the Withlacoochee Basin. Proper notice has been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The maximum daily withdrawal sought is 720,000 gallons and the average daily withdrawal sought is 59,178 gallons. A request for an average daily withdrawal of 59,178 gallons exceeds the water crop of the subject lands as defined by Section 16J-2.11(3), F.A.C. The requested consumption is 114.1 percent of the appropriate water crop. The maximum average daily withdrawal available to the applicant, which is ire compliance with the water crop of the subject lands, is 35,500 gallons. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsection 16J-2.11(2), and (4), F.A.C., exist so as to require the denial of this permit.
Recommendation It is recommended that Application No. 7500019, submitted by Pat Nathe Groves, Inc., Route 2, Box, 132, Dade City, Florida 33525, for a consumptive water use permit be denied. Entered this 28th day of July, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33501 James P. Nathe Pat Nathe Groves, Inc. Route 2, Box 132 Dade City, Florida 33525
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.
