The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
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 approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues presented in these cases are whether a 1987 Settlement Agreement entered into by the parties to this proceeding prohibits the issuance to Pasco County of a general permit for spray irrigation at the Embassy Hills facility on property adjacent to that owned by Marie Cook Matis, and whether discharge of wastewater into ponds at the Embassy Hills facility should be discontinued pending installation of a single media filtration system.
Findings Of Fact The Department of Environmental Protection (DEP) is charged with the regulation and enforcement of state statutes and rules governing construction and operation of wastewater treatment systems. The DEP is the successor agency to the Department of Environmental Regulation. Pasco County (County) is a political subdivision of the State of Florida. Pasco County owns and operates a wastewater collection, treatment, and disposal system that includes the facilities at issue in this proceeding. Marie Cook Matis (Matis) owns and resides on property located on Denton Avenue adjacent to the treatment facilities at issue in this proceeding. THE SPRAY IRRIGATION ISSUE The parties to this proceeding litigated the issuance of permits for construction and operation of the Embassy Hills and Hudson wastewater treatment and disposal facilities. The County had initially planned construction of 14 water disposal ponds at the Embassy Hills facility. Some of the ponds were located adjacent to property owned by Matis. By written settlement agreement between the parties dated December 18, 1987, the construction permit cases were resolved. As a part of the resolution of the dispute over the construction permits, the County agreed to eliminate the five ponds closest to the Matis property. Paragraph 1(c) of the 1987 settlement agreement provides as follows: The County agrees to reduce the number of ponds constructed at the Embassy disposal site located on Denton Avenue from fourteen (14) to nine (9) ponds by eliminating the five (5) most easterly ponds depicted on the county's construction plans.... By Final Order dated January 21, 1988, the dispute was dismissed and the construction permits were issued in accordance with the terms of the settlement agreement. In 1991, the County applied for issuance of operating permits for the constructed facilities. In February 1992, the DEP proposed to issue the operation permits. Matis challenged the issuance of the permits. The cases were referred to the Division of Administrative Hearings. In 1992, the County made application for construction of the "Northwest Pasco Rapid Rate Infiltration Basins" (RRIBs) some of which were located at the site of the previously deleted eastern ponds at Denton Avenue. Late in 1992, the DEP proposed to issue the permits. Matis again challenged the issuance of the permits. The cases were again referred to the Division of Administrative Hearings. The pending cases were subsequently consolidated for hearing as DOAH Case no. 92-2488. Formal hearing was held in August 1993. In October 1993, a Recommended Order was entered. One of the issues addressed in the October 1993 Recommended Order was whether the 1987 settlement agreement precluded permitting and construction of the five easterly RRIBs located adjacent to the Matis property. The Hearing Officer concluded that the settlement agreement did not preclude the County from applying for licensure of the RRIBs. The Secretary of DEP rejected the Hearing Officer's conclusion, stating that the settlement agreement had been specifically incorporated into the 1988 Final Order, and that the agreement addressed the issue of ponds located adjacent to the Matis property. The Secretary's December 3, 1993, Final Order stated that the doctrine of res judicata prevented relitigation of the dispute regarding the five easterly ponds, and that the doctrine of collateral estoppel prevented both the County and the DEP from "disclaiming the conditions set forth in the 1987 Settlement Agreement " The Secretary denied the application for construction of the RRIBs "without prejudice to the County to reapply for a construction permit providing alternative plans for relocating the five (5) percolation ponds " The County now seeks to utilize the property upon which the ponds would have been constructed as spray irrigation fields. The County asserts that the settlement agreement is silent as to any use other than percolation ponds, and that the agreement therefore does not prohibit spray irrigation fields. Matis asserts that the spray irrigation fields are prohibited by the terms of the 1987 settlement. The DEP initially declined to issue the general permit on grounds that the permit "may be inconsistent" with the terms of the 1987 settlement agreement, but in DEP's Proposed Recommended Order, DEP notes that it has now withdrawn its objection to the spray irrigation system. The effluent that would be discharged via spray irrigation is the same as that which would have been deposited into the percolation ponds. The evidence admitted into the instant hearing fails to establish that the County should be issued a general permit for the use of spray irrigation on the Denton Avenue property at the Embassy Hills wastewater plant. THE EMBASSY HILLS FILTRATION SYSTEM ISSUE Matis asserts that the single media filtration system included in the Embassy Hills construction permit has never been installed, and asserts that the discharge of water into the ponds should cease until after the permit condition has been met. Paragraph 1(b) of the 1987 settlement agreement provides as follows: The County agrees to install a single media filtration device at the Embassy Percolation Ponds located on Denton Avenue for the purpose of filtering effluent prior to disbursement to the pond system. The County further agrees that the effluent so filtered shall meet the following treatment parameters - 15 BOD, 5 TSS, and 10 nitrates . . . . In recommending approval of the operating permit applications, the Hearing Officer's 1993 Recommended Order stated that the treatment plants had been operating "without violations." Matis filed an exception to the Hearing Officer's finding related to the lack of violations, citing uncontested testimony acknowledging that the single media filtration system had not been installed. The DEP Final Order of December 1993 granted the exception and modified the Recommended Order, noting that the single media filtration device had not been installed at the Denton Avenue site. In granting the issuance of the operating permits, the proposed permits were modified to specifically include" any and all conditions, fulfilled or unfulfilled, set forth in the Settlement Agreement." Inexplicably, the single media filtration device has still not been installed at the Denton Avenue ponds. The operation of the Embassy Hills plant without installation of the single media filtration device is a violation of the construction permit, which was issued pursuant to the 1987 settlement agreement. The operation of the Embassy Hills plant without installation of the single media filtration device is a violation of the operating permit, which specifically includes the conditions set forth in the Settlement Agreement.
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 as follows: An operating permit for the Embassy Hills Subregional Reuse Facility should be granted in accordance with the terms and conditions stipulated by the parties at the hearing of July 7, 1999. An operating permit for the Hudson Subregional Reuse Facility should be granted in accordance with the terms and conditions stipulated by the parties at the hearing of July 7, 1999. The application for general permit to provide for spray irrigation at the Embassy Hills facility on property adjacent to that owned by Marie Cook Matis should be denied. Utilization of the Denton Avenue discharge ponds at the Embassy Hills facility should cease until such time as the County has installed the required single media filtration system. DONE AND ENTERED this 20th day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of January, 2000. COPIES FURNISHED: Charles D. Hinton, Esquire William Deane, Esquire Deane and Hinton, P. A. Post Office Box 7473 St. Petersburg, Florida 33739-7473 Francine M. Ffolkes, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James Benjamin Harrill, Esquire Figurski and Harrill Suite 350 2435 U.S. Highway 19 Holiday, Florida 34691 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
The Issue The issue is whether Respondent materially breached a contract with Petitioner, South Florida Water Management District (District), as alleged in the District's Final Order dated November 10, 2005, and if so, whether Respondent should be placed on the temporarily suspended list for a period of one year.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Respondent is engaged in the business of exotic vegetation control. The firm's office is located in Loxahatchee, Florida, and its principals are Dr. Howard E. Westerdahl, president and majority owner (52 percent), and Christopher P. Bless, minority owner (48 percent). The business has been in existence for around ten years, operating first under the name of Enviroglades, Inc. and then Enviroglades, LLC. When this matter first began before the District in 2004, the firm's majority stockholder was Irene Goltzene, who now serves as its office manager, and the firm was classified as a District Non-Certified Minority Business Enterprise. In April 2005, the business was sold to its current majority shareholder, Dr. Westerdahl, and on May 15, 2005, Enviroglades, LLC, changed its name to Eco-Engineering, LLC. The District is a public corporation created under Chapter 373, Florida Statutes. Its Vegetation Management Division is responsible for administering its exotic vegetation control program. On May 28, 2004, the District issued Request for Proposal OT040866 (RFP) soliciting "technical and cost proposals from qualified respondents to provide crews, equipment, and supplies for ground based control of exotic plant species via the application of herbicides and the hand removal of small seedlings using licensed applicators and laborers." The RFP called for responses to be submitted no later than June 25, 2004. Three companies, including Respondent, then known as Enviroglades, LLC, timely submitted proposals. On September 23, 2004, the District conducted a negotiation meeting with Respondent. During that meeting, Francois B. LaRoche and Donald Hill, both employees in the Vegetation Management Division, discussed items on a prepared Agenda concerning the RFP, including the type of contract, contract execution, cost proposal, invoicing, statement of work, and general questions. Also, Mr. Hill negotiated labor rates to be charged for Respondent's labor and supervisory positions. On October 14, 2004, the District awarded a contract (Contract) to Respondent and the other two companies who submitted proposals. The Contract with Respondent is a three- year "work order contract," that together with the other two contracts awarded was not to exceed the total project funding of $18 million. A work order contract and the work orders issued pursuant to the contract are based on time and materials, which obligates the District to pay the contractor for labor and chemicals when the invoices are submitted to the District up to the "not to exceed" amount in the work order. Under this process, Respondent would invoice the District for the actual cost of materials, such as herbicides, and for labor according to the negotiated rate schedule attached to the Contract as Exhibit L. Reimbursement under the work order, however, could not exceed $50,000.00. Paragraph 1 of the Contract's Special Provisions, found in Exhibit A of the Contract, provides as follows: . . . The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. Multiple contracts have been awarded for ground application services for exotic plant control, stated on the cover page as the Project Title, to be provided under this CONTRACT. The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. The amount stated on page one of this CONTRACT represents funding that may be used among the multiple CONTRACTS awarded by the DISTRICT'S Governing Board and in no way represents the amount to be paid under any single CONTRACT issued herein. This language meant that the District does not guarantee that any contractor will receive any minimum number of work orders or be issued more than one work order to complete a job. On November 2, 2004, the District conducted a second meeting, identified as a Contractor Review Meeting, which was attended by all contractors, including representatives of Respondent. At the meeting, the District discussed the following topics: statement of work, applicator safety and training, herbicide mixing, loading, and on-site storage of BMP's, new daily activity report, inspection, billing, anticipated Fiscal Year 2005 projects, questions and discussions, and facility and equipment inspection. On November 24, 2004, the District issued several work orders to Respondent for execution under the Contract. Under the District's customary practice, in order for the District to encumber the funds for the current budget year, the work orders were executed in advance of Respondent starting the work under each work order. One of the work orders issued by the District to Respondent was Work Order No. 01 for $50,000.00 to "treat exotics on SandHill Crane Property" (SandHill). This property encompasses approximately 1,400 acres, is located in Central Western Palm Beach County (west of the City of Riviera Beach), and is bordered by the Beeline Expressway on the south side, the District's C-18 Canal on the north side, an unnamed canal that dumps into C-18 on the west side, and a fence that separates the property from a development on the east side. Although Work Order No. 01 stated, without greater specificity, that the contractor was to "treat exotics on the SandHill Crane property," the District intended for the work order to cover all targeted vegetation on the entire site, and not just certain exotics or portions of the property. This was consistent with the type of work that had been performed on the same property for the two prior years (2003 and 2004) by other contractors. The District also intended that under Work Order No. 01, the $50,000.00 represented a ceiling, and Respondent could be reimbursed up to, but not in excess of, that amount. The Work Order called for the work to begin on November 22, 2004, and to be completed no later than March 31, 2005. It can be inferred from the evidence that the purpose of the March 31, 2005, completion date was to ensure that the work would be completed before the rainy season began a few months later. In determining the ceiling of a work order, and whether the value of the work order will afford sufficient labor and materials for the job, the District, through its Vegetation and Management Division staff, considers at least two factors. First, Mr. LaRoche, who is Senior Supervising Scientist in the Vegetation and Management Division, and/or his staff, makes a visit to the site to assess the extent of work to be performed. While on the site, the staff engages in discussions with the property's land manager to better ascertain the scope of the work. Also, Mr. LaRoche considers whether the property is being treated for the first time, or whether only follow-up treatment is required. In this case, Mr. LaRoche knew that the initial clearing of the exotics on the site had been done in 2003 (by another contractor) for $110,000.00 (consisting of two work orders - one for $50,000.00 and a second for $60,000.00), while a second contractor was paid $75,000.00 to maintain the site in 2004. (Prior to 2003, treatment of vegetation had been performed by mechanical removal, and not with herbicides.) Therefore, because the property had already been treated twice, and only follow-up work was required, he concluded that in 2005 it could be completed for a lesser amount, or $50,000.00. Finally, Mr. LaRoche described SandHill as "a very small property" (apparently in comparison to other sites) on which "a lot of work" had already been performed, "a very easy site," and one with "fairly clear boundaries." The Work Order itself did not contain a map or any information regarding the size of the property, the level of infestation of exotic species, the difficulty in performing the work, or ease of access to the property. Even so, Respondent's representative accepted the Work Order by affixing his signature to the document on November 24, 2004. In addition, Respondent's proposal in response to the RFP contained the following language: The office will receive a work order from SFWMD. The project manager will then schedule a meeting with the SFWMD project supervisor at the site where work is to be performed. When meeting with the SFWMD on site Enviroglades will obtain all necessary information, maps, target species, methodology, type and rate of chemical to be used to perform the work specified in the work order. Enviroglades project manager will then relay all information to the crew leader making sure all aspects of the work order are understood. The crew will then be scheduled to perform the work. The project manager and crew leader will be in contact daily while the work is performed. Daily reports will be turned into the office and reviewed by the project manager. The daily reports will then be processed for invoicing to SFWMD. Enviroglades uses Microsoft Projects to track work orders and all pertaining information. By including this language in its proposal, Respondent understood and agreed that if it needed maps or any additional information to understand the nature or scope of the work to be performed under the work order, that it was required to ask the District for that information. It also understood that before the actual work began, its project supervisor would visit the SandHill site with a District representative to better understand the scope of the work. While Section 1.5 of the Contract provided that "[t]he District shall provide additional guidance and instructions to Contractors' employees or hired workers where necessary or appropriate as determined by the District," this did not mean that the District would micromanage the job or provide continual guidance and assistance to a contractor while the work was being performed. In its proposal, Respondent also indicated that it had experienced no problems performing work for the District under other contracts. (Respondent had performed work for the District under at least one other contract in prior years.) More specifically, it stated in its proposal that "while working on a similar contract several years ago Enviroglades was able to handle all project tracking responsibilities set forth by the SFWMD." Before Respondent began any work, on January 18, 2005, the District project manager, David K. Johnson, a District Environmental Scientist in the Vegetation Management Division, met with Respondent's representative, Shaun E. Bless, at the SandHill site. In preparation for the site visit, Mr. Bless acknowledges that he did not read the contract or the Work Order. (Shaun Bless' supervisor, Christopher P. Bless, his older brother, minority owner of the firm, and listed as project manager, also admitted that he only "briefly looked through [the contract].") Mr. Johnson testified that during the site visit, he drove Mr. Bless around the perimeter of the property, described what exotics needed to be treated, and explained the methodology for treating those exotics. He also provided a small map of the property to Mr. Bless, which was admittedly not "very detailed." While on the site, Mr. Johnson and Mr. Bless met with SandHill's land manager, Bill Helfferich, who was familiar with the property and could answer any questions regarding its size or the type and extent of vegetation present on the property. At hearing, Mr. Bless denied that Mr. Johnson was able to provide a map, a list of exotics to be treated, or the actual size of the site. However, because his deposition testimony directly conflicts with his testimony at hearing in several material respects, Mr. Bless' assertions have not been accepted as being credible. For example, at his deposition, Mr. Bless acknowledged that he knew he was supposed to treat Australian Pine, Melaleuca, Lygodium, Acacia, and Brazilian Pepper. He also stated that he understood what the boundaries of the site were and that Respondent had to treat all exotics, identified above, within the boundaries. There is no evidence that, before the work began, any representative from Respondent ever asked for clarification of any provision in the Contract, a more specific description of the area to be treated, or whether $50,000.00 was sufficient to complete the work. An assertion by Mr. Bless that he asked Mr. Johnson on January 18, 2005, whether there were additional funds (over and above the $50,000.00) to do the work is not deemed to be credible. Mr. Johnson denied that he was asked this question, and no other employee of Respondent expressed this concern to the District. Under Section 4.5 of Exhibit C of the Contract, the District spelled out detailed procedures for the treatment of exotic vegetation. Specifically, Subsection 4.5.3 provided that "[e]xotic vegetation to be treated includes, but is not limited to, melaleuca, Brazilian pepper, Australian pine, Java plum, earleaf acacia, Old World climbing fern, and torpedograss." At the same time, Subsection 4.4.2 of Exhibit C of the Contract spelled out the following level of performance expected to be achieved by the contractor: Minimum acceptable performance is defined as 90% control of targeted vegetation within the timeframe of the manufacturers recommended period for control to occur. This meant that ninety percent of the targeted exotic vegetation (in this case everything identified by the District to be treated) "needs to be showing sign of death or dying once they are treated." Therefore, since specific vegetation on the entire SandHill site was targeted for treatment, at a minimum, it was expected that ninety percent of the targeted vegetation on the entire site "would be dead." Finally, Subsection 4.4.3 of Exhibit C of the Contract specified how Respondent had to remedy the situation if it performed poorly by not meeting the minimum performance standards. Specifically, that provision stated that: If minimum acceptable performance is not achieved for any area of the project within a reasonable time frame following project completion (time frame dependent upon species targeted, mode of action of treatment, site and weather conditions), additional thorough treatment of the target plant(s) shall be the responsibility of the CONTRACTOR at no cost to the District. Areas not treated or not responding to treatment may be required to be retreated at the CONTRACTOR'S expense, if it is determined that the CONTRACTOR provided faulty treatment measures or products. Vegetation treatments will be determined in terms of 'surface acres,' i.e., 43,560 square feet equal one surface acre. In short, this meant that if Respondent did not achieve the minimum acceptable performance for treating any area of the site, it was required to retreat that area at its own expense. Each of these provisions has been used in the District's contracts for many years. Until this case arose, the District represented without contradiction that no contractor had ever claimed to be "confused" by any of these requirements, particularly since there is a negotiation meeting, a contractor review meeting, and a site visit before any work begins. Respondent began work on the SandHill site around January 19, 2005. The District's project manager, Mr. Johnson, visited the site approximately two times per week to check on the progress. If he found a problem, he would prepare a written report, known as an Exotic Plant Treatment Inspection Report. Apparently, no significant problems were noted until the last week in February, when Mr. Johnson prepared two reports. See Finding of Fact 25, infra. However, before those reports were prepared, Mr. Johnson says there were several oral communications to one of the supervisors and the office manager, Irene Goltzene, concerning the proper equipment to be used and the number of employees that were performing the work. It is also worth noting that it takes two to three weeks after vegetation is treated to "figure out what's been killed, what's been treated." At a minimum, then, an evaluation of the quality of the work could not be made until several weeks after the work began. In late February 2005, Ms. Goltzene notified Mr. LaRoche (presumably by telephone) that Respondent had finished its work at the SandHill site, but that Respondent "would require more money to complete the property." By that time, the District had paid invoices totaling $49,300.00 to Respondent. After receiving this request, Mr. LaRoche requested a meeting with Respondent's representatives to discuss what he characterized as a lack of performance at the site and the District's expectation that the site would be retreated at Respondent's own expense. On February 28, 2005, the parties met to discuss the work being performed on the site. According to Mr. Johnson, the District discussed "the problems that we've had," "[s]howed them the pictures we took of both sites, the SDS site and the SandHill Crane site," and "show[ed] them the improper treatments done at both locations." (It can be inferred that Respondent was simultaneously performing work under another work order at "the SDS site.") Finally, the District advised Respondent that "they would have to retreat the SandHill Crane at their own expense." During the course of the meeting, Mr. Johnson documented two instances indicating that Respondent was doing a less than adequate job at the site. These deficiencies were noted in two Exotic Plant Treatment Inspection Reports, which are summarized below: On February 23, 2005, Mr. Johnson inspected the site and found one of Respondent's supervisors (Paul Eversley) asleep in his truck while the truck was running. This activity constituted a safety hazard since a running vehicle could possibly cause a fire. (District Exhibit 12) On February 25, 2005, or two days later, Mr. Johnson again inspected the site and found an "unsystematic treatment of the property and the poor treatment that was done of the property, specifically to Brazilian pepper, Lygodium and . . . melaleuca." Mr. Johnson concluded in his Exotic Plant Treatment Inspection Report that Respondent's treatment was "not a very systematic approach to treatments." (District Exhibit 13) In response to the concerns expressed at the meeting, on March 2, 2005, Ms. Goltzene sent an email to Mr. LaRoche advising that Mr. Eversley "was orally reprimanded and told he was never to sleep while at the job site, this included during lunch and break time. Also that he would not be able to perform work on any SFWMD job for a period of 2 months." (The email notes that a similar oral reprimand was given to Mr. Shaun Bless, who apparently was observed sleeping on another job.) The email did not respond in any manner to criticisms raised at the meeting concerning the "poor treatment" of the vegetation. On March 14, 2005, Daniel D. Thayer, Director of the Vegetation Management Division, received an email from SandHill's manager, Mr. Helfferich, who stated in part: I don't want Enviroglades setting foot on any SOR property again if I have anything to say about it. They did a shitty job and charged us $50k. Steve Smith told me Veg. Manage. was trying to get some answers from the contractor about why the work was so poor and spotty. . . . I would like to have the rest of the area really treated this time, but not by them. After reviewing the emails from Ms. Goltzene and Mr. Helfferich, on March 17, 2005, Mr. LaRoche sent a letter to Ms. Goltzene in which he stated that he did not agree that a verbal reprimand of Mr. Eversley (and Mr. Bless) was adequate; instead, he stated that a suspension from District work for six months was the appropriate remediation. In addition, Mr. LaRoche advised as follows: We have the impression that your company is not fully committed to working for the District. You request additional work orders but are reluctant to fully staff the existing projects to accomplish the work in a timely and efficacious manner. The immediate availability of properly working equipment for all projects must also be included in the commitment. Without this type of commitment we may not be able to continue the contractual arrangement with your company. The projects you have been involved in with the District have multiple partners within the agency and with other governmental agencies. The Vegetation Management Division and its contract partners must be responsive and responsible in its operational activities. A recent evaluation of the SandHill Crane project your company completed, which we are doing for the Land Stewardship Division, is not up to their or our standards. They have indicated to us that their preference is for your company not to be allowed to perform work on any of their properties. Please indicate to us how these issues will be resolved in thirty (30) days, according to Exhibit B, Article 6 - Termination/ Remediation (copy attached) and Exhibit A. Without resolution there will not be any further work orders. (Emphasis in original) No one from Respondent answered Mr. LaRoche's letter of March 17, 2005.1 Further, the SandHill site was not retreated. However, someone from Respondent's office requested a meeting with Mr. LaRoche's supervisor, Mr. Thayer. On April 1, 2005, the parties met and discussed "questions about SandHill Crane, and also what [the District was] going to do to help Enviroglades continue the work on the property." The parties also agreed to meet again on April 13, 2005, at the SandHill site. On April 12, 2005, or the day before the site meeting, Mr. Johnson took photographs which establish that there were misapplications of chemicals at the site as well as areas that were supposed to be treated and were not. These photographs have been received in evidence as District Composite Exhibit 19. On April 13, 2005, several District employees, including Mr. Thayer, met with Shaun and Christopher Bless on the site to "see what was done, what was treated, and determine - what they were going to do about SandHill Crane." On April 22, 2005, Mr. Thayer sent Ms. Goltzene a letter which summarized the results of the April 13 meeting. In his letter, Mr. Thayer stated in part as follows: The work was satisfactory in the areas where melaleuca was treated. However, the areas where Brazilian pepper was targeted (this was throughout the majority of the property) the work was poorly done. According to the contract (Exhibit "C", Section 4.4.2) between the District and Enviroglades, "minimum acceptable performance is defined as a 90% control of the target vegetation within the timeframe of the manufacturers recommended period for control to occur." This critical standard was not met by Enviroglades with the Brazilian pepper work. Therefore in accordance with the contract, Exhibit "C", Section 4.4.3 which states "If minimum acceptable performance is not achieved . . . additional thorough treatment of the target plant(s) shall be the responsibility of the contractor at no cost to the District . . .", the District is requesting that Enviroglades re-treat the Brazilian pepper throughout the entire property. The District will provide the herbicide and Enviroglades shall provide the labor at no further cost to the District. Please respond, in writing, no later than May 1, 2005. Your prompt attention to this matter is appreciated. By this time, Dr. Westerdahl had just purchased controlling interest in the business. (Whether he was fully aware of the problems which the former owners had created under Work Order No. 01 is unknown.) At hearing, Dr. Westerdahl produced an undated letter (District Exhibit 23), which he states was a response to Mr. Thayer's letter of April 22, 2005. Mr. Thayer denied ever receiving a copy, and the District has no record of such a letter being filed or date-stamped. In the letter, Dr. Westerdahl pointed out that a change in ownership had occurred, that he was now the "point person . . . for relations with the District," and that while he disagreed with the "assessment of the work product," Respondent agreed "to do the labor [to retreat the property if] SFWMD [would] supply the chemical." On April 29, 2005, Dr. Westerdahl sent a short email to Mr. Thayer in which he stated in part that the "[o]riginal is being sent in the mail. I would like to set up a meeting with you so you understand that this is important to us and we would like to have the opportunity to re-express our commitment to this[.]" He also asked that Mr. Thayer call him at his cell phone number, which was shown on the email. Dr. Westerdahl says he did not receive a return call from Mr. Thayer. By May 9, 2005, the SandHill property had still not been retreated. About the same time, Mr. LaRoche spoke with J. J. Flathmann, Deputy Director of Procurement, concerning the problems the District had encountered under the Contract. They reached a concensus that Respondent had breached the contract in a material respect. A "material breach" is defined as "any substantial unexcused nonperformance. The breach is either failing to perform an act that is an important part of the transaction or performing an act inconsistent with the terms and conditions of the contract." Fla. Admin. Code R. 40E-7.215(5). They concluded that by failing to meet the minimum performance standard in the Contract, Respondent had performed an act inconsistent with the terms and conditions of the contract. Ms. Flathmann then spoke with Frank Hayden, then Director of Procurement, who had the responsibility of issuing Cure Notices. A "cure notice" is defined in Florida Administrative Code Rule 40E-7.215(3) as follows: a letter citing the specific nature of the material breach, the corrective action required by the District and a thirty (30) day time frame for curing the breach, starting from receipt of the Cure Notice. The letter shall also state that if the contracting entity fails to cure the breach within the thirty (30) day period, the contracting entity will be found in default and may be placed on the District's Temporary or Permanent Suspension List. Mr. Hayden agreed with the assessment of Ms. Flathmann and Mr. LaRoche and directed Ms. Flathmann to prepare a Cure Notice and authorized her to sign it. On May 10, 2005, a Cure Notice was sent to Respondent indicating that the District considered Respondent's failure to comply with the District's vegetation control requirements a material breach of the terms and conditions of Contract No. OTO40866. The Cure Notice went on to say: Pursuant to Exhibit "C" of the contract, paragraph 4.4 you are required to achieve 90% control of targeted vegetation. On February 25, 2005, [sic] Enviroglades, LLC was issued a work order to treat exotic vegetation at the SandHill Crane Property. The completed work did not meet the acceptable performance as defined as 90% control of targeted vegetation. Accordingly, unless this material breach is corrected within thirty (30) days after receipt of this Cure Notice, the District shall terminate Contract No. OTO40866 for default pursuant to Article 6 titled Termination/Remedies of the contract, and shall initiate Governing Board action for determination of temporary or permanent suspension, if any. Please direct all questions concerning this matter to the undersigned . . . . Thus, the Cure Notice provided that all deficiencies must be cured no later than June 10, 2005. After Dr. Westerdahl received the Cure Notice on May 11, 2005, he immediately telephoned Mr. Thayer and reiterated that he desired to work with the District to resolve any outstanding issues. He also retained new counsel (John J. Fumero, Esquire) to assist in resolving the problem. (Enviroglades' counsel to the former owners had been terminated after sending a letter on May 4, 2005, to the District's Executive Director accusing the District of "favoritism, pettiness and discrimination" and other "unfair, illegal, [and] discriminatory" acts in administering the Contract, accusations which apparently did not sit well with the District.] On May 26, 2005, Respondent's new counsel sent a letter to Mr. Hayden advising that he now represented Respondent and confirming that a meeting with District staff was scheduled for May 31, 2005. Dr. Westerdahl stated that he had never received a Cure Notice before, and on advice of his new counsel, did not begin working on the SandHill site after receiving the Cure Notice. He was also told by counsel that the cure period of thirty days could be "stayed." On May 31, 2005, a meeting by District staff and Respondent's representatives took place. At the meeting, which Dr. Westerdahl described as being "a very accusatory meeting" accompanied by considerable "disagreement," the parties apparently agreed to allow Respondent to re-enter the site and complete any remaining work. This was confirmed in a letter from Mr. Fumero to District counsel on June 7, 2005. See District Exhibit 35. (It appears that much of the meeting addressed the accusations raised in the letter which Respondent's former counsel had sent to the Executive Director on May 4, 2005.) A written response to the May 10, 2005 Cure Notice was not sent by Respondent until June 2, 2005, or eight days before the deficiency was expected to be cured. In his letter to Mr. Hayden, Dr. Westerdahl stated in part that Respondent intended to complete the exotic plant treatment on the Sandhill Crane Property in the manner required and expected of the SFWMD staff. Our goal is to start the treatment program NLT [no later than] Monday, June 5, 2005. Arrangements have been made to meet with Mr. David Johnson, SFWMD, on Friday, June 3, 2005, to conduct a thorough site visit, obtain map(s), estimate treatment acreage, and identify herbicides required and quantities required." The letter also indicated that a treatment plan would be submitted to the staff by June 6, 2005. Dr. Westerdahl acknowledged that he prepared a treatment plan because he knew (as of June 2) that he would not be able to begin retreatment of the site until June 9 or 10 at the earliest (or when the time for curing the deficiency expired), even though his letter stated that work would begin no later than June 5. Finally, the letter outlined "some of the key changes that have been made specific to this contract as well as company policy." On June 3, 2005, the south and north areas of the SandHill site were reinspected by Mr. Johnson, who was accompanied by Dr. Westerdahl and Mr. Christopher Bless. (Due to the rainy season, which had now begun, other areas on the site were temporarily inaccessible.) In his Exotic Plant Inspection Treatment Report (District Exhibit 31), Mr. Johnson noted that the treatment of the Brazilian pepper was not "thorough," that the Lygodium in the south area "had not been treated at all," that there were "mis-applications" of chemicals to the north and west of a pasture area, and that hardwood species like Acacia "were not treated in the initial sweep." At the conclusion of the inspection, Mr. Johnson provided a treatment list for Dr. Westerdahl indicating the plant species to be treated, the treatment method, and the chemical to be used. See District Exhibit 32. Based on the information received at the June 3 meeting with Mr. Johnson, on June 6, 2005, Dr. Westerdahl advised Mr. Hayden by letter that there were two areas on the property which needed retreatment. The letter indicated that the first area would be treated on eight days between June 9 and June 20, 2005, while the second area would be treated on ten days between June 13 and 24, 2005. Finally, the letter listed the herbicides and chemicals that would be required for the retreatment. (The District had previously agreed to provide the chemicals if Respondent would provide the labor to complete the job. See Finding of Fact 33, supra.) On June 8, 2005, or more than two months after the Contract called for the work to be completed, Respondent's counsel advised Mr. Hayden by letter that Respondent's personnel misunderstood the terms and conditions of the Contract. Specifically, counsel stated that Respondent understood Subsection 4.4.2 of the Contract to call for "90% of the treated species rather than 90% of all the exotics on the property," and this was responsible for Respondent's "perceived nonperformance" under the Contract. (In other words, Respondent interpreted the provision to mean that whatever areas it was able to treat within the dollar amount of the work order, a ninety percent kill rate was expected; it did not interpret the provision to mean that at least ninety percent of all targeted exotic vegetation on the site must be killed.) The letter also noted that while the Cure Notice required Respondent to cure all deficiencies by June 10, 2005, Dr. Westerdahl's plan to correct the deficiencies "will require additional time to properly complete," and that "[s]ite work will resume on the site upon the District's authorization." By letter dated June 13, 2005, District counsel advised Mr. Fumero that "[d]ue to the unusually wet weather we have experienced, the District is willing to extend the cure notice by ten (10) working days starting on Tuesday, June 14, 2005." The letter also noted that "under no circumstances will the District allow the cure period to extend beyond June 30, 2005." (Emphasis supplied) The purpose of this language was to make it explicitly clear that no further extensions of the cure period would be granted. The letter further stated that Mr. Fumero's letter of June 8, 2005, was the first time the District learned that Respondent did not understand the terms of the Contract. Finally, the letter advised that Respondent should contact Mr. Hayden to make arrangements to visit the site. On June 16, 2005, Dr. Westerdahl, Christopher Bless, and a District Environmental Scientist, Gordon Baker, met on the SandHill site "to review policies and procedures for the retreatment of property in accordance with the Cure Notice." Dr. Westerdahl had a work crew present that day and intended for it to be supervised by Shaun Bless. However, because Mr. Bless had been suspended from all District work for six months (for sleeping while on duty), see Finding of Fact 28, supra, the work could not begin and was delayed until another supervisor could be found. Mr. Baker prepared a memorandum summarizing the meeting and pointed out that Mr. Johnson would meet with Respondent's representatives again the following day (June 17, 2005) at which time it would be emphasized that the entire property had to be "swept." See District Exhibit 38. Based on his inspection of the site and the amount of vegetation that needed to be retreated, on June 17, 2005, Mr. Baker signed a new work order which authorized Respondent to purchase herbicides in the amount of $15,000.00 (rather than $5,000.00) for the retreatment of the site. On June 17, 2005, Dr. Westerdahl prepared a memorandum to Mr. Baker concerning their meeting on the site the previous morning. He confirmed that he had been given a map which marked all areas to be retreated, that Mr. Shaun Bless and Mr. Eversley could not work on the property, and that work would commence the day after the meeting, or on June 17. On June 17, 2005, Mr. Johnson prepared an Exotic Plant Treatment Inspection Report for the two targeted species: Brazilian pepper and Lygodium. He noted that personnel were now working on the site treating the Brazilian pepper. On June 23, 2005, another Exotic Plant Treatment Inspection Report was prepared by Mr. Baker, who reported on the progress of the work to treat the Brazilian pepper. He noted that "at this rate they may not be able to complete the property. Called Howard [Westerdahl] to request additional crews. He said he planned to have additional crew tomorrow." Dr. Westerdahl submitted progress reports to Mr. Baker on June 24, 28, 29, and 30, 2005. See Respondent's Exhibit 4. In his June 28 report, he noted that afternoon rains were delaying the completion of the work. He also stated that out of ten targeted areas, Areas I, II, and V were completed or would be completed no later than June 27; that Areas III, VI, and VII should be completed by July 1; that areas VIII, IX, and X may not be finished until "early next week"; and that Areas III and IV may require "a little follow up spraying" the following two days. Accordingly, he requested "a few extra days to complete this work." In his final progress report submitted on June 30, 2005, Dr. Westerdahl stated that his crews worked all that day and "all B. peppers, melaleuca, and acacia in Area III will be treated by the end of Friday, July 1." He further stated that he anticipated "being finished with all open areas" by July 7; treatment of Brazilian peppers and acacia in Areas VI and VI would be completed by July 5; the "[r]emaining Lygodium in Areas III, VI, and VII will be treated starting again on Tuesday, July 5"; and "[t]he wooded areas (VIII, IX, and X) should be finished by Monday, July 11 or before, if weather permits." Finally, he stated that July 12 would "be used to survey and re- spray colonies that do not appear to be dying." Notwithstanding the District's earlier admonition that no further extensions of the cure period would be granted, on June 30, 2005, Respondent's counsel submitted a letter to District counsel requesting "an extension of time for the SandHill Crane project up to and including July 14, 2005." The letter noted that Respondent had lost "a couple of days due to rain," that access to the certain areas of the property was limited to marsh buggies due to the amount of rainfall, and that two new workers would not begin work until July 11, 2005. As of June 30, 2005, the work was not completed, and Respondent had failed to cure the breach within the time period specified by the Cure Notice. This was treated by the District as a default on the Contract under Florida Administrative Code Rule 40E-7.217. Under that rule, the District is required to issue a Termination for Default Notice by Certified U.S. Mail "[i]n the event that the contracting entity fails to cure the material breach within the time specified in the Cure Notice." In making this determination, Section 6-4 of the Contract requires in part that the District shall specify the reasons for taking this action, "which shall not be arbitrary or capricious." After discussions by Ms. Flathmann and Mr. Hayden, on July 1, 2005, the District, through Mr. Hayden, issued a Stop Work Order, which was provided to Respondent's counsel. (One of Respondent's work crews was also ordered off the site the same day.) The Stop Work Order constituted a termination of the Contract and provided in relevant part as follows: The South Florida Water Management District (District) hereby provides notice that your client has failed to cure the conditions of the material breach under Contract No. OTO40866 as specified in the District's certified letter of May 10, 2005 and the extension letter dated June 13, 2005. Pursuant to clause 6.1 of the contract, the District is therefore issuing this Termination for Default Notice (Notice), effective immediately upon your receipt of this certified Notice for failure to perform ground application services for exotic plant control at SandHill Crane Property. All contract performance shall cease as of the effective date of this Notice and the District shall initiate Governing Board actions for determination of temporary or permanent suspension, if any. * * * The District is in receipt of your letter dated June 30, 2005, in which you have requested additional time for your client to finish spraying at the SandHill Crane project. As the attached letter states, your client materially breached its contract with the District and was given a thirty (30) day cure notice. Your client failed to cure the breach within the required time. The District provided your client an additional 13 days to cure the breach due to the extraordinary circumstances surrounding the impossibility to perform due to the weather. Even after your client was afforded more time to complete the job, Enviroglades failed to show up at the site for over a week while the weather was good. As the attached letter states under no circumstances would your client be provided an extension of time after June 30, 2005. This letter shall serve as notice to have your client cease work on the SandHill Crane Project effective at the close of business on June 30, 2005. On July 29, 2005, Mr. Johnson made a post-treatment inspection of the SandHill site. In his final Exotic Plant Treatment Inspection Report, he noted as follows: The entire property was divided into 10 units which were to be treated sequently (sic) before proceeding to the next. Our inspection revealed that units 1, 2 and 3 were swept while unit 5 had some partial treatments. On units 1, 2 and 3 the Brazilian pepper treatments revealed [at] 80% control, while the Lygodium treatment were around 5% control. Unit 5 had only the western and southwestern area treated. The total area of the three units and one partial unit totaled approximately 30% of the property. When a default on a contract occurs, the District is required to determine "whether the contracting entity should be suspended, and if so, whether it should be temporarily suspended and for what period of time, or permanently suspended from doing business with the District." Fla. Admin. Code R. 40E-7.218(1). Section (2) of the rule identifies seventeen factors to take into account in making this determination. Three such factors are "[t]he economic impact of the material breach to the District," whether "the breach caused or will cause delay in the completion of a District project," and "if the breach caused a delay in performance, whether it was a substantial delay." Fla. Admin. Code R. 40E-7.218(2)(a), (b), and (c). Pursuant to the rule, Mr. Hayden "gathered material that would assist [him] in making the recommendation to the governing board," which included discussions with members of the Vegetation Management Division, the contract administrator, his deputy, and counsel, and a review of documents pertaining to the matter. The evidence shows that because of the breach, the District incurred additional costs due to an "inordinate amount of staff time supervising Enviroglades during the time they performed at SandHill Crane." This included additional site visits, inspections, and monitoring by the staff, numerous meetings with Respondent's representatives, the preparation of written communications, and the provision of further instructions and guidance not normally given to the contracting entity. Mr. Hayden also took into consideration the fact that the District incurred additional expenses in purchasing herbicides while Respondent attempted to complete the job. In all, the District says it incurred an economic impact of $6,264.15. (Mr. Hayden's testimony is unclear as to whether that amount is for the herbicides alone, or whether it also includes the value of the additional staff time expended on this job. It is assumed, however, that this amount represents the cost of the herbicides only, as this would be consistent with the District's Final Order.) Finally, Respondent's inability to complete the work "put the job performance into the rainy season," which caused a substantial delay in getting the project finished. It can reasonably be inferred from the evidence that because of the delay, the site could not be completed by another contractor until a new fiscal year (Fiscal Year 2006), at which time it would have to treat not only the normal vegetation growth which occurs from year to year, but also any targeted vegetation not treated by Respondent in 2005.2 On November 9, 2005, Mr. Hayden recommended that given these considerations, Respondent should be placed on the temporarily suspended list for a period of one year. The Governing Board accepted this recommendation and a Final Order was entered on November 10, 2005. This appeal followed. At hearing, among other things, Respondent contended that the $50,000.00 was insufficient to treat the entire site, and because the Contract was a time and materials contract, Respondent could do as much as it could for that amount, and consistent with District practice on other contracts, then request additional work orders to complete the project. If a contractor expresses concern about going over the ceiling amount in a work order in order to complete a job, the District customarily meets with the contractor to assess the property. This can occur before the job begins, during the job, or near the completion of the work. In determining whether funding is adequate for treatment at a particular site, and additional work orders should be issued for a job, the District takes into consideration such matters as the job performance of the contractor at the time the request is made, the manner in which the money to date has been expended by the contractor, any new conditions unknown to the District at the time the work order was written (such as access problems), and any other circumstances that may affect the price of the work. There are also certain types of sites and work that have constantly changing conditions that often require more than one work order. Examples are the District's Stormwater Treatment Areas (STAs) and the spraying of exotic vegetation in canals. The evidence suggests that Respondent had a work order under the Contract for one such area known as "STA One East." The SandHill site did not fall into either category. Respondent correctly points out that the District issued two work orders for the same site in 2003, and it has issued additional work orders to other contractors to complete a job, including the STA One East job, which Respondent was then performing under the same Contract. In the case of the work performed on the SandHill property in 2003, the contractor was doing the first herbicidal treatment of the site, it was meeting the minimum performance standards under its contract, and the District agreed that the contractor needed and deserved additional money to complete the job. Unlike that situation, Respondent failed to meet the minimum performance standard under the Contract, the District (and SandHill's land manager) did not believe that $50,000.00 worth of work had been performed, and therefore no additional work orders were justified. To issue work orders under these circumstances would be in direct conflict with Subsections 4.4.2 and 4.4.3 of the Contract. As to the issuance of a second work order for the STA One East job, STAs and canals are uniquely different from other projects (such as SandHill) and often times require additional work orders to complete the job. Respondent also contends that the District rule governing cure notices does not contain any prohibition against extending the cure period, and there is no evidence to justify not extending the period for another ten working days when the job was not completed on June 30, 2005. Neither Florida Administrative Code Rule 40E-7.215(3), which defines a "cure notice," or 40E-7.216, which describes the procedure for issuing one, address the issue of whether or not an extension of time to satisfy a cure notice can be granted. Here, the evidence does not show that the District was arbitrary or capricious or otherwise abused its discretion by failing to approve a second extension of time for Respondent to complete the work. Respondent further suggests that after the meeting on May 31, 2005 (which was two months after the work should have been completed), it was prohibited by the District from entering the SandHill site to finish the work for several weeks. The evidence shows that the District's primary concern was to get the job completed as soon as possible, given the fact that the rainy season began in June. Although there may have been some confusion on Respondent's part, particularly since its counsel instructed it not to enter the property until permission was given, there is no credible evidence that any District staffer told Respondent that it was prohibited from entering the site, or that retreatment must be delayed until a treatment plan had been formally approved by the District. Indeed, the evidence shows that Respondent had keys to the property at all times, and notification to the Vegetation Management Division is all that would have been required to access the site. Respondent further contends that it was confused over the language in Section 4.4.2 of the Contract calling for "90% control of targeted vegetation," that the cited provision is ambiguous, and that it did not learn the actual scope of the work until specific instructions were given after the Cure Notice was issued. Given the fact that Respondent's representatives attended a negotiation meeting and a contractor's review meeting, Mr. Bless visited the site prior to the beginning of the work, and no other contractor has ever been confused by this language, this argument has been rejected. All other contentions raised by Respondent have either been addressed in other Findings of Fact, or they are deemed to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order determining that Eco-Engineering, LLC, breached its Contract C-OT040866 in a material respect, and that it be placed on the temporarily suspended list from doing business with the District for a period of one year. DONE AND ENTERED this 25th day of July, 2006, 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 July, 2006.
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
Findings Of Fact Ivanhoe is a planned unit development on approximately 864 acres in Broward County extending from Griffin Road on the north, Southeast 148th Avenue on the east, Sheridan Road on the south, and with the westwardly boundary approximately one-fourth mile east of Dyke Road. A planning consultant testified concerning the conceptual site development plan for Ivanhoe prepared pursuant to the Broward County Zoning Code and Land Use Plan. The planned unit development anticipates just less than 2,323 dwelling units (the density limit imposed by the Broward County Land Use Plan), to consist of single family units, townhouses, cluster homes, apartments, and some recreation and commercial land uses. The developers of Ivanhoe will not construct the ultimate dwellings but will develop the land for construction of residences and other buildings by builders. Ivanhoe is to be developed in three phases. The first phase is expected to be platted and ready for ultimate development by 1983, the second phase in 1985, and the third phase in 1988. South Broward is a Florida corporation formed solely to provide utility service to Ivanhoe, and if necessary, adjacent property. The corporation is not presently funded or in operation, but it has retained consulting engineers and management consultants experienced in planning, designing, and operating water and sewer utility systems in Florida. One hundred percent of the capital stock of South Broward is owned by Hugh F. Culverhouse. Mr. Culverhouse also owns other water and sewer utilities in Florida regulated by the Commission. The evidence in the record (Exhibit 1 and Exhibit 2) establishes that South Broward's shareholder possesses substantial assets and net worth, and that he has the financial capability to provide whatever capital is needed in order to construct the required utility facilities and to operate a sound utility company. Although South Broward's utility consultant recommended a 50-50 to 60-40 ratio of equity to contributions-in-aid-of-construction, the shareholder is able to invest all of the capital necessary to construct and operate the entire utility system, or whatever ratio of equity to CIAC the Commission may require, should he be willing to do so. In order to determine alternate means of providing utility service to Ivanhoe, South Broward's consulting engineer prepared a preliminary report setting forth various alternatives and his cost estimates for each. These general engineering plans are sufficiently flexible to meet the changing requirements of the appropriate governmental agencies. However, the preparation of complete, detailed plans is premature until such time as certificates are issued by the Commission. At the present time, neither South Broward nor Cooper City Utilities possesses any permits from regulatory agencies relating to the facilities necessary to serve Ivanhoe. A representative from the Department of Environmental Regulation testified relative to licensing. There is nothing in South Broward's preliminary engineering report that would not allow the required permits to be issued. A representative from the Broward County Health Department, which agency reviews and approves engineering plans for potable water facilities in Broward County, also testified concerning licensing. The plans described in South Broward's preliminary report would be approved if they met all of the appropriate criteria when submitted. From this evidence, therefore, if detailed engineering plans are submitted by South Broward consistent with the general plans contained in the preliminary report, South Broward will be granted the necessary construction and operating permits for its proposed water and sewer systems. Ultimately, South Broward plans to utilize the Broward County regional wastewater treatment facility, to be constructed pursuant to Public Law 92-500 under what is known as a "201 Plan", to provide sewage treatment service to Ivanhoe. South Broward's management consultant presented evidence relative to the company's proposed capital structure, rates, the projected operating budget and manner of operation. South Broward's proposed rates would be in keeping with the rates of other utilities in the area, including Cooper City Utilities, even though South Broward would levy no plant contribution charge and would maintain at least 50-50 ratio of CIAC and invested plant. The past operational experience of South Broward's consultants and its sole stockholder demonstrate that South Broward will be operated in an efficient and sufficient manner. The evidence presented establishes that South Broward possesses the engineering and operational capability to construct and operate the necessary facilities to provide service to Ivanhoe. However, there remains to be established the willingness of South Broward's shareholder to commit sufficient funds to the company for this purpose. There is no competent, direct evidence in the record to demonstrate this point, although the capability of Mr. Culverhouse to make available the necessary funding was not challenged at the hearing, and is found as a fact. South Broward being otherwise able to provide utility service to Ivanhoe, the willingness of its shareholder to provide adequate funding may be demonstrated ex-parte, if the evidence presented by Cooper City Utilities fails to establish that it can provide the service required by Ivanhoe more economically or efficiently than South Broward. In this circumstance, the protest should be dismissed; and the application then being unprotested, may be considered further without another hearing. Section 367.051(1), Florida Statutes. The service area of Cooper City Utilities is located within the municipal boundaries of Cooper City, Florida, with its nearest boundary approximately 2 miles from the closest boundary of Ivanhoe. This utility contends that the Commission should deny South Broward's application for certificates because it is more capable of providing service, and because granting a certificate to South Broward will encourage the proliferation of small water and sewage treatment plants, contrary to the public interest. In order to determine the merits of this protest, it is necessary to evaluate the financial ability of Cooper City Utilities, the capacity of its utility plant to serve the Ivanhoe development, and the feasibility of the plan of service proposed by this utility. For the year 1979, Cooper City Utilities sustained a combined loss in its water and sewer operations of approximately $390,000. As of December 31, 1979, it had a negative net worth or deficit of $952,000. In addition, Cooper City Utilities has filed a petition with the Commission seeking authority to borrow $450,000 for the purpose of meeting existing obligations -- to make refunds to developers, to make refunds of customer deposits, and to fund construction of future improvements to the existing utility plant. (Commission Docket No. 800562-WS). Further, the Supreme Court of Florida has recently denied certiorari to review Commission Order No. 8964 requiring Cooper City Utilities far to refund to its customers an additional amount of approximately $400,000. (Supreme Court Case No. 58,047, Order dated September 12, 1980). As a result, the utility consultant to Ivanhoe has recommended that Ivanhoe not consider connecting to Cooper City Utilities as a source of water and sewer service because of the financial instability of this utility. In summary, this utility is not presently capable of making a financial investment in the amount necessary to provide services to Ivanhoe. The only means by which Cooper City Utilities could construct the facilities necessary to serve Ivanhoe is for the developers to provide all of the funds to construct the facilities in the form of contributions-in-aid-of- construction. Under this utility's proposal, Ivanhoe would provide the funds for off-site facilities in the amount of approximately $575,000 a contribution to plant in the amount of approximately $467,500, and a contribution to the hydraulic share cost of existing off-site facilities of $297,500 ($175 per ERC for 1700 ERCs). The deputy clerk of the City of Cooper City, Florida testified concerning the zoning and land use of the remaining area within the service area of Cooper City Utilities. Based on the present development, zoning, platting, and land use, when the existing service area of this utility is fully developed, the customers will require approximately 1,256,000 gallons per day (based on an average daily flow) of the capacity of the utility's water and sewage treatment plants. This demand will utilize the entire capacity of the sewage treatment plant, which has a design capacity of 1.25 mgd. In addition, the maximum day throughput demand of the service area on the utility's water facilities will be approximately 2.826 mgd, which will utilize substantially all of the capacity of the water treatment plant, which has a throughput design capacity of 3.0 mgd. Thus, if Cooper City Utilities were to serve its existing certificated area and Ivanhoe, it would be required to build additional water and sewage treatment facilities. However, Cooper City Utilities does not have sufficient land at its treatment plant site to construct an expansion to its existing facilities, and it does not presently own or have access to enough land to construct the necessary 20 acres of evapopercolation ponds to provide an effluent disposal at its existing plant. South Broward contends that Cooper City Utilities is not a reliable source of utility service for Ivanhoe because the utility has been negotiating to sell its water and sewer systems to a municipal government in the area. Representatives of Cooper City Utilities have met with representatives of the cities of Sunrise, Cooper City, and Davie concerning the possible acquisition of the utility by these cities. Although there is not sufficient evidence in the record to permit a finding to be made on the matter of a sale of Cooper City Utilities to a municipality, the subject of such a possible sale is relevant to the issue of whether it is in the public interest to grant a certificate to South Broward pursuant to its application. If such a sale were consummated, Ivanhoe and the future residents of the development would be dependent for water and sewer services upon a municipality, the officials of which are not elected by them and who do not represent them. Cooper City Utilities also contends that certification of South Broward as a water and sewer utility would violate the policy of regulatory agencies to encourage the growth and expansion of existing community utility systems, and to discourage the proliferation of small water and sewage treatment facilities. However, the representatives of the regulatory agencies will approve the detailed engineering plans which South Broward submits if the same are in conformity with Chapter 17-22, Florida Administrative Code. Thus, this contention is not persuasive in disposing of the issues herein. The evidence fails to establish that Cooper City Utilities can make an economically feasible extension of its systems to serve the Ivanhoe development, or that it is more capable than South Broward of providing water and sewer service to Ivanhoe, or that it can provide such service more economically or efficiently than South Broward. Although this utility has never failed to provide adequate service, and Possesses sufficient treatment capacity to serve Ivanhoe at the present time, it will be required to expand its facilities in order to serve both its existing certificated territory, and also the Ivanhoe development. Its financial condition is such that it would not be able to finance this necessary expansion of its facilities. In addition, the possible sale of Cooper City Utilities to a municipal government makes it uncertain whether the utility is a reliable source of service. Therefore, this utility's protest is not sufficiently meritorious to warrant a denial of the application of South Broward.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of South Broward Utility, Inc., be granted conditionally, subject to a determination by the staff of the Commission that the company's sole shareholder is willing to commit adequate financing to the company to enable it to provide water and sewer service to Ivanhoe as proposed. It is further RECOMMENDED that the protest filed by the Cooper City Utilities, Inc. be dismissed. THIS RECOMMENDED ORDER entered on this 30th day of October, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: James L. Ade, Esquire and William A. Van Nortwick, Jr., Esquire 300 Independent Square Post Office Box 59 Jacksonville, Florida 32202 William E. Sundstrom, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
The Issue Whether the Loxahatchee River Environmental Control District's applications for construction of wastewater collection and transmission systems, specifically, Permit Numbers CS50-298013, CS50-301197, and CS50-305990, should be granted by the Palm Beach County Health Department.
Findings Of Fact Respondent, Palm Beach County Health Department (Health Department) was delegated the authority by the Department of Environmental Protection to review applications and issue permits for wastewater collection and transmission systems pursuant to the Specific Operating Agreement for Delegation of Wastewater Program Authority From the Florida Department of Environmental Protection. The argument specifically referenced Chapter 403, Florida Statutes, and the successor to Title 17, Florida Administrative Code, which is Title 62. Respondent, Loxahatchee River Environmental Control District (ENCON), is a water control district. Petitioner, Village of Tequesta (Tequesta), is a municipal corporation. Petitioner Bermuda Terrace & Pinetree Drive Concerned Citizens (Concerned Citizens) is a coalition of homeowners of record owning property in Bermuda Terrace and on Pinetree Drive. On December 17, 1996, the Health Department issued Permit No. CS50-298013 to ENCON for installation of sewers in Bermuda Terrace and Pinetree Drive. On March 27, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-301197 to ENCON for the construction of sewers in Country Club Point and Anchorage Point. On June 24, 1997, the Health Department issued a Notice of Intent to Issue Permit No. CS50-305990 to ENCON for the construction of sewers in Tequesta Country Club. Currently the wastewater in the areas for which the sewers are proposed to be installed flows into septic tank systems. There are 835 homes on the Tequesta Peninsula that would be hooking up to the proposed sewer system. The Health Department created a review form for internal use in reviewing applications for sewage collection permits. The Sewage Collection Checklist contains the statutory and administrative rule requirements for permitting sewage collection and transmission systems. The applications submitted by ENCON were reviewed using the review form. All three applications met the criteria contained in the applicable statutes and rules. 11. Robert Mitchell, who supervises the permitting for wastewater collection systems for the Health Department, opined that the permit applications provided reasonable assurances that the construction and operation of the sewage system would not discharge, emit, or cause pollution. A sewage collection system does not emit or discharge pollution and, if constructed and functioning according to the technical requirements of the administrative rules, does not cause pollution. Thus, the applications compliance with the technical compliance with Rules 62-604.400 and 62-604.300, Florida Administrative Code, is reasonable assurance that the proposed systems will not cause pollution. 12 The proposed permits contain the following specific condition: Prior to construction, all required permits or approvals must be obtained for all aspects of the project from the appropriate agencies. Any dewatering required by the construction of the wastewater collection/transmission system will have to meet the permitting criteria for that particular activity, which comes under the jurisdiction of the South Florida Water Management District and not the Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Permit Nos. CS50-301197, CS50-305990, and CS50-298013 to ENCON for construction of sewer systems. DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998. Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Victoria Coleman, Esquire District 9 Legal Office Department of Health Post Office Box 29 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Post Office Box 3475 West Palm Beach, Florida 33402-3475 Timothy W. Gaskill, Esquire Curtis L. Shenkman, Esquire DeSantis, Gaskill, Smith & Shenkman, P.A. 11891 U.S. Highway One North Palm Beach, Florida 33408
Findings Of Fact Hiram Bowden, age 65 years, has owned the property and lived for 25 years at Bowden's Trailer Park, 514 Glen Road, Orlando, Orange County, Florida. He resides with his wife, Deana, and adult son, Joe. Bowden's Trailer Park is licensed as a mobile home park by the Department of Health and Rehabilitative Services, pursuant to Chapter 513, F.S. The permit allows 21 mobile homes and several recreational vehicles. The park is served by an on-site sewage disposal system, also known as septic tanks. This system provides anaerobic treatment, with waste solids settling out and liquids passing through filters and into a drain field. Because of the high water table in the area, the Bowdens' system is above ground. That is, the tank is below ground and the effluent is pumped up to a treatment box and into perforated drain tile pipes. The drainfields, including the drain tiles, are above ground, covered with earth, with cement block walls. The Bowdens have two drainfields, a large one serving about three-fourths of the trailers and a laundry, and a smaller field serving the rest of the trailers. Tom Yurchenco has been an environmental health specialist with the Orange County Health Department since 1983. He has a 4-year undergraduate degree in environmental studies and is a certified Class B Wastewater Treatment System Operator. He was first assigned to inspect Bowden's Trailer Park on July 25, 1988. On that date he found both drainfields overgrown and cluttered with debris. There was a distinct odor, but it was impossible to tell what the problem was. His inspection report, left at the site, required the area to be mowed. The mowing was accomplished, and on August 8, 1988, Yurchenco found the drainfields leaking. The Bowdens were given a sanitary nuisance citation and a week to correct the problem. Another inspector visited the site on August 16, 1988. Yurchenco returned on September 1, 1983 and found the large field was no longer leaking. The repair job appeared, however, to be make-shift, with dirt piled and packed in. The small drainfield was leaking. On October 26, 1988, Yurchenco found the large drainfield was leaking again, with effluent flowing into a county ditch. The small drainfield was too overgrown for a close inspection. On November 4, 1988, there was no change in the conditions. A letter was sent to the Bowdens reminding them of the August 8, 1988, notice to abate, and warning them of legal action. On December 13, 1988, Thomas Yurchenco found no change in the drainfields, and referred the case for legal action. He made other inspections on January 30, 1989; February 2, 1989; February 16 and 17, 1989; April 5, 1989; and May 3, 10 and 18, 1989. On each occasion one or the other or both drainfields were leaking sewer effluent, on some days draining into the county drainage ditch. Some, but not all, of the inspection reports are signed by the Bowdens- -Deana, Hiram or Joe. The health department inspector tried to deliver the reports, but a dog guarded the Bowden's trailer and when the inspector drove up and honked his horn, sometimes there would be no response. On those occasions he left the report at the pump house. He also spoke with the Bowdens by telephone, and numerous letters were sent describing the problem and urging correction. It was obvious that some work was done from time to time in response to the requests, but nothing of lasting significance. Jim Craigo, an inspection supervisor with the Orange County Health Department, visited the site most recently on October 10, 1989, and December 11, 1989. On both days the large drainfield was operating but the smaller (northside) drainfield was leaking. Defective sewage treatment facilities are a serious health hazard. Pathogenic enteric diseases are spread by exposure to sewage effluent. The drainfields at Bowdens Trailer Park are near the trailers, where children play and pets are allowed to wander. The organisms from the effluent are also transmitted to humans indirectly by flies and roaches. Failure in a sewage disposal system such as the Bowdens' can be caused by faulty construction, poor soil, misuse of detergents, grease-laden products, driving vehicles over the drainfield or too much water. When Bowden closed the laundry, the conditions in the system serving that facility improved. The inspectors also noted that the leakage was worse when the pumps were operating, thus indicating that the system could not handle the volume being generated. Health department staff can make suggestions to owners regarding corrections to the system but the owner is ultimately responsible for identifying the cause of the failure and for taking all necessary corrective action. Hiram Bowden made some repairs to his system, but he did not consult an engineer as suggested by Inspectors Yurchenco and Craigo. He used to install septic tanks, although he does not claim that he has ever been registered by the department as required in Rule 10D-6.070, F.A.C. The repairs made to the Bowdens' system have been effective in preventing the leakage continually noted by the inspectors for approximately eighteen months. Dean Bodager is an HRS Environmental Health Consultant Environmental Health Consultant in District 7. He helps the county health units prepare legal cases. After the Bowden complaint was drafted and signed, he gave it to his secretary to send certified mail. The complaint itself is not dated, but the post office return receipt was received at Bodager's District 7 Health Program Office on April 18, 1988, with a signature "Deana Bowden", and date of delivery of April 15, 1989. Hiram Bowden admits that he received the official notice to abate dated August 8, 1988. He also admits that he received the Administrative Complaint. He claims that he called someone at HRS, but he did not respond in writing within 30 days, as required in the complaint, as he did not understand that this was a form of legal action at the time. He admits there are still problems with the small drainfield, but claims that he keeps trying to fix them and to do what the inspectors suggest.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered revoking Respondents' mobile home park permit. DONE AND RECOMMENDED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1990. COPIES FURNISHED: Sonia N. Burton, Esquire HRS-District 7 Legal Office 400 W. Robinson St., Suite 701 Orlando, FL 32801 J. Thomas Bowden, Esquire P.O. Box 3187 Orlando, FL 32801-3187 R. Sam Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Miller, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 =================================================================
