The Issue The issue in this case is whether a variance for a reduced setback of four feet from Petitioner's well to a building pad treated with pesticide should be denied by the Department of Health.
Findings Of Fact Petitioner resides on property consisting of 7.5 acres at 3665 Darby Road, New Smyrna Beach, Volusia County, Florida. Since Petitioner receives no public utility service at his home, he has a septic system and potable drinking water well on his property. However, Petitioner's family does not drink the water from the well. The family purchases bottled water for drinking purposes. The well water is used for other household purposes, such as cleaning and bathing. There are other locations on Petitioner's property for a well. The evidence demonstrated that Petitioner has or had alternative locations for the well. Petitioner built a 1681 square foot barn utilizing an old concrete foundation from a previous barn. Petitioner's well is located in the southwest corner of the old barn's foundation and four feet from the new barn's foundation. The building plans for the barn, submitted to Volusia County, clearly indicated the location of Petitioner's well within four feet of the new barn's foundation. Even with this information Volusia County issued a building permit for the new barn. There were other locations for the barn on Petitioner's property which Petitioner would have utilized had he known of the setback requirements when he first permitted his barn. Volusia County required the new barn's foundation to be elevated. In order to elevate the sub-floor for the new barn's foundation, Petitioner placed a layer of visqueen on the sub- floor, or old concrete floor of the old barn, then added a layer of sand and poured concrete on top of the sand layer. The sand layer is encased in concrete. The concrete encasement does not necessarily prevent leaks from above given the porous nature of concrete. Additionally, the condition of the old barn floor, i.e. whether it has cracks, is not known. The Volusia County building code requires that the soil under a foundation be treated for termites. After Petitioner's contractor added the sand layer, he spread one four-pound bag of 90 percent Sevin dust, a common garden pesticide, on top of the sand. The application rate was within normal application rates for the barn area. The Sevin dust was not applied with any pressure to force penetration into the soil. More than seven days later the contractor poured the new concrete foundation on the pesticide-treated sand layer. The label on the Sevin dust package indicates that 10 percent Sevin dust may be applied to vegetables up to the day of harvest and in some instances 3 to 7 days before harvest, depending on the type of crop. However, the package does not indicate that a treated crop is edible for human consumption without first washing the crop or other processing of the crop. Therefore, a lack of danger from contamination has not been shown. Indeed, the evidence did not show that health would not be adversely affected by use of Petitioner's well given this major deviation from the setback requirements and the soil in the area. A Volusia County building inspector informed Petitioner's contractor that the close proximity of Petitioner's potable well to the area treated with pesticide was a violation of state health codes and could not be approved because the well did not meet the requirement of having a 25-foot separation from soil treated with pesticide. The contractor informed Steve Baur, a Department of Health employee, about the violation. The deviation of 21 feet from the 25-foot setback requirement is a major deviation. Petitioner applied to DOH for a variance to allow him to utilize his potable drinking water well. Petitioner's variance application was denied by the variance committee and Dr. Sharon Heber, Department of Health Environmental Health Director, for the following reasons: Section 64E-8.009(2), F.A.C., allows the granting of variances to 'prevent excessive hardship only in cases involving a minor deviation from established standards when the hardship was not intentionally caused by the applicant, where no reasonable alternative exists, and where proper use of the system will not adversely affect public health.' According to information supplied by the Volusia County Health Department, the treated slab is located 4 feet from the existing well. This is a major deviation from the established standards. The well completion report for the existing well indicates coarse shell starting at 10 feet and continuing down to 60 feet. This material provides no filtration and/or confinement for the pesticide.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order denying Petitioner's request for a variance. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of June, 2000. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Edward N. Pollack 3665 Darby Road New Smyrna Beach, Florida 32168 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Langue, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Respondent Sarasota County Public Utilities Department (Sarasota County) has provided reasonable assurances pursuant to Rule 17- 555.530(1)(a), Florida Administrative Code, that its proposed water treatment plant will comply with each applicable water quality standard contained in Part III, Chapter 17-550, Florida Administrative Code. Whether Respondent Sarasota County has provided reasonable assurance pursuant to Rule 17-555.530(1)(b), Florida Administrative Code, that its proposed water treatment plant meets adequate engineering design complying with the applicable engineering principles established in Rules 17-555.310 through 17-555.160, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: STIPULATED FACTS Sarasota County Utilities Department is a department established by Sarasota County, a political subdivision of the State of Florida and operates a public utility department which is charged with meeting, among other things, potable water needs of the residents of Sarasota County. At all times pertinent to the issues herein, HRS was responsible for receiving applications and issuing permits for the construction of water treatment plants and the accompanying well field. Petitioner, Charles P. Page, is a resident of Sarasota County and resides at 259 Glen Oak Road, Venice, Florida. Sarasota County filed an Application for a Water Treatment Plant Construction Permit with HRS seeking to construct a well water collection system and a 12 mgd - electrodialysis treatment plant having an auxiliary power system to provide power for the well field and water treatment plant. Sarasota County has previously obtained a water use permit from the Southwest Florida Water Management District (SWFWMD) #208836.00, restricting Sarasota County to feed water for the water treatment plant to 7,303,000.00 gallons average daily withdrawal and 9,625,000.00 gallons peak monthly withdrawal. Sarasota County has received permits for the eleven (11) production wells from HRS. It was the duty of HRS to review the plans and specifications and all supporting documentation to assure that they address and meet every requirement listed in Rule 17-555, Florida Administrative Code, for the issuance of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That a final order be entered issuing permit No. PATS No. 204307 & WC No. 1591-91-036 to Respondent Sarasota County, as set forth in the Notice of Intent To Issue dated February 20, 1992, provided that the grant of the subject permit shall include the general and specific conditions in the Intent To Issue with the further recommendation that the third required specific condition found on page 1 of the Specific Conditions be modified as follows: Construction of the electrodialysis reversal water treatment plant covered by this permit shall not begin prior to the issuance of a permit as required by State of Florida Department of Environmental Regulation for the EDR concentrate discharge facility. DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2002 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 22(47); 23(48); 24(19-20) 29(49); 38(5); 39(19); 42-43(19,20); and 51(49). 2. Proposed finding(s) of fact 2,3,5,6,7,11,14,15,16,18, 19,20,21,25,26,30,31,35,40,45,46,47,49,and 50 are neither material nor relevant to this proceeding or the conclusion reached in the Recommended Order. Proposed finding(s) of fact 4,8,9,10,12,13,17,27,28,and 41 are rejected as not being supported by competent substantial evidence in the record. Proposed finding(s) of fact 32,33,34,36,37, and 48 are unnecessary. Proposed finding of fact 44 is rejected as not being the "opinion" of the Hearing Officer. The transcript will show that the Hearing Officer was only restating the testimony of Judith Richtar. But see Finding of Fact 49. Rulings on Proposed Findings of Fact Submitted by the Respondent Sarasota County The following proposed findings of fact are adopted in substance as modified if the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 20(1) - 20, respectively); 21(27); 22 - 26(22 - 26, respectively); 27(28); 28(29); 29(31); and 30 - 44(32 - 46, respectively). For proposed findings of fact 45 through 65 see Findings of Fact 51 and 52. Proposed findings of fact 66 through 68 are unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Department of Environmental Regulation The Respondent Department of Environmental Regulation adopted Sarasota County's proposed findings of fact 1 through 44, 63 and 64, and 66 with modification. Therefore, the rulings on the Department's proposed findings of fact would be the same as the previous rulings on Sarasota County's proposed findings of fact adopted by the Department. COPIES FURNISHED: Bruce Wheeler Pitzer, Esquire 546 47th Street Sarasota, FL 34234 William A. Dooley, Esquire Nelson, Hesse, Cyril, et al. 2070 Ringling Blvd. Sarasota, FL 33237 Joseph W. Landers, Esquire Landers & Parsons 310 W. College Avenue, 3rd Floor Tallahassee, FL 32301 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2016.
Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District had permitting authority for the issuance of consumptive use permits in the area in which Respondent, El Jobean, proposes to sink its irrigation well. On December 12, 1988, El Jobean submitted a consumptive use permit application to sink a new well for the purpose of irrigation of a golf course to be developed on the property it owns in Sarasota County. The well is to be located in the NE 1/4 of the NE 1/4 of Section 32, Township 365, Range 20R, in Sarasota County, Florida near the southern boundary of an irregularly shaped piece of property consisting of approximately 855 acres, owned by the applicant, which extends over Sections 28, 29, 32 and 33, Township 365, Range 20E. Respondent proposed to sink a 10 inch diameter well to a total depth of approximately 900 feet with casing in the well now to extend down to 300 feet, with a pump capacity of 1,000 GPM. The golf course to be irrigated is to encompass approximately 190 acres. The applicant requested authority to withdraw an average of 600,000 GPD with a limitation of a maximum of 1,440,000 GPD. The application was properly staffed by the District. In the staff report on the application, the average daily use limitation was expanded to 707,000 GPD; consumptive use was raised from 0 to 139,000 GPD; and maximum daily consumption was reduced from 1,440,000 GPD to 1,240,000 GPD. These changes were due to correction of arithmetic errors in the application and were accepted by the applicant. The ultimate recommendation of the staff was for approval of a 6 year permit, subject to certain conditions outlined in subparagraph I of the staff report. These special conditions require the provision and use of flow measuring devices to maintain an accurate record of the water withdrawn; the maintenance of flow records and the providing of periodic reports to the District; the collection and analyzing of water quality of samples taken from the well to measure the appropriate parameters for chlorides, sulfates, and total dissolved solids; the reporting of the results of these samplings and a description of the sampling and analytical methodologies employed; and a requirement that the permittee investigate the feasibility of supplementing and/or substituting drawn water with treated sewage affluent. After the staff report was submitted, proper notice of the District's intent to issue the permit was published. Based on that notice, protests were filed both by Miakka and Mr. Bishop. The area in question is located within the Manasota Basin which, itself, is located within the Southern West-Central Florida Ground Water Basin, (SWCFGWB), which encompasses all of Pasco, Hillsborough, Manatee, Sarasota, Polk, Hardee, and DeSoto Counties, and parts of Lee, Glades, Charlotte and Highlands Counties. The SWCFGWB sits atop several aquifers which include the Floridian Aquifer, two Intermediate aquifers, and the Surficial Aquifer. The Floridian Aquifer is the deepest and the Surficial Aquifer is on the top. The Miakka Community Club is a Florida corporation made up of residents of the pertinent area whose primary function is to preserve and conserve the rural nature and spirit of the Northeast section of Sarasota County. The club performs this function through educational programs, community activities, and participation in the legislative process. Miakka urges denial of the permit sought by El Jobean based on its membership's belief that the property owners whose property is in the immediate vicinity of the proposed well will be adversely affected if El Jobean is permitted to sink its well and withdraw water from it. The club membership believes that approval of El Jobean's well will result in contamination of existing personal water wells due to excessive use by El Jobean; potential contamination of Sarasota County's future drinking water sources which include the capital Ringling,/MacArthur tract and the Myakka River; reduction of property values; and destruction of personal resources. Petitioner also urges that since the proposed golf course will be a part of a private club for the use of members only, in which membership will be limited, there is no public benefit derived from the approval of and sinking of the well in question. Petitioner also contends that during the periods of severe water shortage as are being currently experienced, permission to sink a well of this size to draw water in of the magnitude expressed in the application, would be counterproductive and detrimental to the interests of the other property owners in the area. In support of its claim, Petitioner presented the testimony of two homeowners from the area, Mr. Richardson and Ms. Mustico. Mr. Richardson, whose well is 183 feet deep, has had several problems with his well even without the instant drilling. In 1974, and subsequent thereto, he has had to go deeper with a suction pipe because the water has dropped below the level of the tail pipe. Ms. Mustico's 160 foot deep well, with 80 feet of casing, is used to supply water for the home. She also has other wells for watering her lawn and for livestock, one of which goes down 500 feet. She is concerned that the well proposed by El Jobean will adversely impact her ability to draw water from her wells because, she believes, the water level from which her water is drawn will drop. In the past, her primary well has gone dry and the wells of several neighbors have gone dry as well. Through maps and other documentation taken from the Ground Water Resource Availability Inventory for Sarasota County, Florida, prepared by the District in March 1988, Petitioner has established that areas of significant groundwater withdrawal within the SWCFGWB occur in Hillsborough, Manatee, Polk, Hardee, DeSoto and Highlands Counties. With the exception of an extremely small portion of Sarasota County located contiguous to Manatee County, there appear to be no areas of major ground water withdrawal currently existing in Sarasota County. The majority of the major municipal well fields within the pertinent basin that are located within Sarasota County, extend down to the Intermediate and Surficial Aquifers with only 3 extending through the lower Intermediate into the Floridan Aquifer. These include the Verna well field located in the northeast corner of Sarasota County where it abuts Manatee County; the Sarasota County well field located in northwest Sarasota County near the Manatee County line; and the Sorrento Utility, Inc., well field which is located near the Gulf Coast, approximately two-fifths of the way down between the Manatee and Charlotte County lines. With the exception of the Verna well field, all the municipal well fields in Sarasota County appear to be reverse osmosis systems and as of 1987, there were 28 reverse osmosis systems located within Sarasota County. Most are relatively small in their output measured in millions of gallons per day. With the exception of 3 public supply wells, 2 of which are permitted an average annual pumpage greater than 100,000 GPD and 1 of which is permitted less, all of the permitted public supply well fields in Sarasota County are located west and south of 1-75 as it extends from the Manatee County line in the north to the Charlotte County line in the south. The El Jobean well would be located east of the line, in that area occupied by the 3 public supply wells. Generalized recharge areas for the upper Floridan Aquifer in the groundwater basin in issue here have been categorized from "high", with a rate of more than 10 inches per year, to "Generally none", with a recharge rate at 0. In 1980, the high recharge rates existed in the north-central part of Pasco, the eastern part of Polk County, and the northeastern part of Highlands County. Sarasota County is in an area wherein the recharge rate was either very low or generally none. In September 1986, the high recharge rate was found in a very small area of northeastern Pasco County, and small areas in both Polk and Highlands Counties. Sarasota County, for the most part, was classified as having no recharge. In May 1987, the high recharge rates were, again, a small area in eastern Pasco County, a small area in northeastern Hillsborough County, a small area in southeastern Polk and northwestern Highlands Counties, and a minuscule area in central Pinellas County. Again, Sarasota County had a recharge rate of 0. Generalized estimated, calibrated, model-derived recharge and discharge values for the upper Floridan Aquifer in the ground water basin in issue here, as they pertain to Sarasota County, reflect positive 2 recharge to negative 1 discharge inches per year. Historically, however, the northeast portion of Sarasota County, where the El Jobean well in question would be located, evaluated by various individuals or agencies periodically from 1980 through 1988, reflects a recharge of anywhere from 0 to 2 inches per year. None of this documentation was supplemented, however, by direct testimony by an individual knowledgeable in this area, and Petitioner's main thrust appears to be an unsubstantiated fear that the sinking of El Jobean's well will have a negative impact on its membership's wells. Admittedly, the residents in the area in question all rely on private wells for the majority of their water supply, other than through the catchment of rainwater, which is insignificant. It was also established that the area has been undergoing a severe water shortage and that conservation measures have been mandated. On the other hand, El Jobean presented the testimony of a hydrogeologist, Mr. Moresi, who has extensive experience with the modeling process used to determine water consumption and recharge in southwest Florida and Sarasota County. The aquifer system in Florida is made up of water bearing limestone layers below the surficial sand base. This aquifer system underlays the various zones throughout the state and reflects a surficial aquifer extending from ground level down approximately 70 feet to a confining bed which separates it from the lower strata. This top confining bed is approximately 20 feet thick, and below it is the Tamiami-Upper Hawthorn Aquifer, which is between 100 and 200 feet deep and which rests on another confining bed somewhat thicker than the upper one. Below the second confining bed is the Lower Hawthorn-Upper Tampa Aquifer which extends approximately from the 250 foot to the 450 foot level at the Manatee County line, and between the 320 foot and the 710 foot level at the Charlotte County line. Another confining bed lays between this aquifer and the Floridan Aquifer which starts at the 500 foot level and goes down well below the 900 foot level in the north and extends from the 730 foot level down in the south. The confining bed below the surficial aquifer is made up of a clay material which retards the movement of water from one aquifer to another. The surficial aquifer is porous and saturated with water from the water table down. Since the confining beds are far less porous than the aquifers they separate, water moves much more slowly through them. The lower aquifers are made up of limestone and are also porous and contain water. The Tamiami-Upper Hawthorn formation consists of limestone and clay, but is water bearing. The Lower Hawthorn-Upper Tampa formation is similar and both make up the intermediate aquifer below which is the lower confining bed followed by the Floridan aquifer. Respondent's well would be cased in steel down to an area approximately 100 feet into the Floridan Aquifer, through the Lower Hawthorn- Upper Tampa Aquifer and through the lower confining bed. Since the well would be cased to well below the lower confining bed, water existing in the upper aquifers, would be prevented from being drawn down by operation, of the Respondent's well either directly or by settling down to replace the water drawn out. Generally, the deeper a well is drilled, the worse the quality of the water, and it becomes less potable. The Floridan Aquifer produces far more copious quantities of water than do the intermediate aquifers. However, since it is cheaper to drill to the intermediate zones as the wells need not be so deep, and since the water there is better, most domestic wells go no deeper than these aquifers. They go down approximately 150 to 180 feet. The pressure in each level is separate from and different from that in the other aquifers. The upper intermediate system generally has a lower pressure than the lower intermediate system. As a result, water from the lower intermediate system tends to leak upward toward the upper intermediate aquifer, rather than the reverse. In addition, a recent survey tends to show that the Floridan aquifer also tends to leak upward into the lower intermediate level. It also shows that leakage through the confining beds amounts to .002 GPD per cubic foot of aquifer. Petitioner claims that since the lower water is of lesser quality, and since withdrawal of water from the upper layers would promote leakage upward, thereby adding lower grade water to the better grade upper water, there could be a diminishment in upper level water quality as a result of water being drawn from the upper levels. However, according to Mr. Moresi, the .002 figure is so small it would result in an infinitesimally small drawdown of water level from the upper intermediate level aquifer and the potential for compromise of the water quality therein is remote. Clearly, this is not the result of drawing water from the Floridan Aquifer as the well in question would do but more the result of the residential wells extending into the upper levels. The District ran a model for the proposed El Jobean well (a Jacob- Hantush model) which showed that drawdown at the wellhead would be just over 2 feet. This means that use of the Respondent's well would reduce the water level in the Floridan Aquifer at the well head by 2 feet. However, this drawdown is shown to decrease rapidly out to where, at distance, it is almost immeasurable. In fact, drawdown of the Floridan Aquifer at 24,000 feet from the well head (approximately 4.5 miles) would be .1 feet, slightly or 1 inch. The .1 foot drawdown relates to the lowest (Floridan) aquifer and the resultant drawdown in the upper intermediate aquifer, into which the majority of residential wells are sunk, would be relatively undetectable. Since the Petitioner's wells, at their deepest, go only into the upper intermediate level, and would be separated by 2 confining beds from the Floridan Aquifer, the impact on the domestic wells at 2 miles from the El Jobean wellhead would be immeasurable. Even at 1 mile, there would be minimal drawdown in the Floridan Aquifer and almost none in the upper intermediate aquifer. The potentiometric surface of the intermediate layer would not be adversely affected, nor would that of the surface water. Recognizing the potential for saltwater intrusion which occurs all along the coast, based on his studies, Mr. Moresi concluded that the well in question here would not induce significant saltwater intrusion. He concluded as well that the permit is consistent with the requirements of the District rule; that the amount permitted for the use of irrigation of the golf course is reasonable, assuming a golf course is a reasonable and appropriate use of water; that the withdrawal by the well in issue would not have an adverse impact on users outside the property on which the well was located; that it would not impact existing users; that there is no other water available for the purpose intended; that the water taken from the Floridan Aquifer under this permit may be potable but is of poor quality; and that the applicant met rule standards. Mr. Moresi also discussed the possible cumulative impact of the proposed well when operated along with the currently existing wells. If there are other drawdowns from the same cone into which El Jobean's well would be sunk, the withdrawals would be cumulative. However, as best he can determine, the only other significant drawdown from the cone pertinent here is that of the Verna well field. In his opinion, that well field's drawdown, which is from the northeast, would not be significant even when considered with the El Jobean well. Mr. Moresi was also satisfied that while the confining bed separating the surficial aquifer from the next lower level might be disturbed, the deeper one goes, the less likely there is to be mixing of aquifers. The only instance where water could move from one level to another as a result of the well is where there is no casing on the bore hole. In the instant case, plans call for, and permit conditions require, the well to be cased to below the lowest confining bed. Consequently, there should be no upward or downward flow of water as a result of the bore. Mr. Tyson, who worked on the evaluation of El Jobean's application for permit, was of the opinion that the amount of water requested by El Jobean in its application was appropriate for a golf course. This does not mean that a golf course is an appropriate use of the property. The special conditions imposed on the granting of the permit by the District are designed to reduce any impact possibly caused by the permitted activity. The Jacob-Hantush model used in analysis of the instant application is considered to be a conservative tool and showed minimal drawdown at all property boundaries. The use of other models in this case was considered neither necessary nor appropriate. Mr. Tyson considers the proposed permit a reasonable beneficial use as defined in the Florida Administrative Code and statutes because it proposes use of reasonable amounts of water and the models indicate no unfavorable impact. Based on the past practice of permitting golf courses with subdivisions, he feels the proposed use is reasonable. He concludes, therefore, that it is in the public interest to grant this permit. In his opinion, the permit will not interfere with legal existing uses and meets all statute and rule requirements. Considering the evidence as a whole, it is found that petitioner has presented insufficient evidence to support its claim that approval and operation of El Jobean's well as proposed would have an adverse impact on the property owners. It's concerns are no doubt sincere, but these concerns are not sufficiently confirmed by evidence of record. At the hearing, the parties stipulated that if the permit were granted, it would be modified by the addition of two conditions: The proposed well shall be constructed with a minimum of 600 feet of casing so as to prevent the unauthorized interchange of water between water bearing zones in order to prevent the deterioration of water quality in the shallower zones. If the well cannot be properly completed to prevent such an unauthorized interchange of water, the well shall be abandoned and plugged in accordance with Rule 17-21.10(2)(c), F.A.C.. Upon completion of the well, a copy of the well construction completion report shall be sent to the District. The permittee shall line the bottom of the pond that will be used as the irrigation source, with clay to a thickness equal to 1.5 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Southwest Florida Water Management District enter a Final Order issuing Consumptive Use Permit Number 209458, as modified by the conditions stipulated to at the hearing held herein on June 7, 1989, and outlined in Finding of Fact Number 27 herein, to El Jobean Philharmonic Group, Inc. RECOMMENDED this 9th day of August, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: Not a Finding of Fact but a statement of the ultimate issue of fact. Accepted and incorporated herein. 3-6. Accepted and incorporated herein. 7-12. Accepted and incorporated herein. Accepted as indicating original conditions. The parties stipulated to additional conditions at the hearing. Accepted. 15 & 16. Accepted and incorporated herein. 17-33. Accepted and incorporated herein as pertinent. 34 & 35. Accepted. 36 & 37. Accepted. 38 & 39. Redundant. 40-43. Accepted. 44. Accepted. 45-51. Accepted. 52 & 53. Accepted. 54-56. Accepted. 57 & 58. Accepted and incorporated herein. 59-66. Accepted. 67-75. Accepted and incorporated herein. 76 & 77. Accepted and incorporated herein. 78. Accepted. 79-84. Accepted. Accepted and incorporated herein. Rejected. 87 & 88. Accepted. 89-93. Accepted and incorporated herein. Accepted. Accepted in the natural source sense suggested by Petitioner. 96-99. Accepted and incorporated herein. 100 & 101. Accepted and incorporated herein. 102-105. Accepted and incorporated herein. 106. Accepted. 107 & 108. Accepted. 109 & 110. Accepted. For the Respondents: 1 & 2. Stipulation between the parties accepted and incorporated herein. 3-6. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence except for the second sentence which is incorporated herein as a Finding of Fact. Not a Finding of Fact but a comment on the evidence. 9-11. Accepted and incorporated herein. 12. Accepted. 13-16. Accepted and incorporated herein. 17. Accepted and incorporated herein. 18 & 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 22-26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29. Accepted. 30-32. Accepted and incorporated herein. 33-40. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. COPIES FURNISHED: Becky Ayech Personal Representative Miakka Community Club 421 Verna Rd. Sarasota, Florida 34240 Douglas Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 6899
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
Findings Of Fact The Petitioner, Responsible Growth Management, Inc., is a not-for- profit corporation conceived and organized for the purpose of monitoring local governments within the geographic boundaries of Lee County for compliance with the requirements of the Florida Growth Management Act. Its members are residents of Lee County. Some of its members obtain their potable water from sources protected by Lee County Ordinance No. 89-30, as amended by Ordinance 90- 40 and 90-46, collectively referred to as the Wellfield Protection Ordinance (WPO). Other members obtain their potable water from sources the Petitioner contends are not protected by the WPO. The Petitioner contends that, for several reasons, the WPO is not consistent with the Lee County comprehensive plan. The Lee Plan Goal 41 of the Lee County comprehensive plan (the Lee Plan) provides in pertinent part: GOAL 41: GROUNDWATER. To protect the county's groundwater supplies from those activites having the potential for depleting or degrading those supplies. OBJECTIVE 41.1: WELLFIELD PROTECTION. By 1990 the county shall adopt a wellfield protection ordinance to provide regulations protecting the quality of water flowing into potable water wellfields. POLICY 41.1.1: The proposed wellfield protection ordinance shall be based on reliable technical data to ensure that adequate protection is provided. POLICY 41.1.2: The wellfield protection ordinance shall be amended whenever better technical data is developed and whenever additional potable wellfields are proposed. POLICY 41.1.3: The staff hydrogeologist shall review and comment on all development applications near public utility potable water wellfields, with particular attention to proposed land uses within a 10-year travel time from the well- heads. Goal 85 of the Lee Plan provides: GOAL 85: WATER QUALITY AND WASTEWATER. To ensure that water quality is maintained or improved for the protection of the environ- ment and people of Lee County. OBJECTIVE 85.1: Maintain high water quality, meeting or ex- ceeding state and federal water quality standards. POLICY 85.1.1: Sources of water pollution shall be identi- fied, controlled, and eliminated wherever feasible. POLICY 85.1.2: New development and additions to existing development shall not degrade surface and ground water quality. POLICY 85.1.3: The design, construction, and maintenance of artifical drainage systems shall provide for retention or detention areas and vegetated swale systems that minimize nutrient loading and pollution of freshwater and estuarine systems. POLICY 85.1.4: Developments which have the potential of lower- ing existing water quality below state and federal water quality standards shall provide standardized appropriate monitoring data. POLICY 85.1.5: New developments shall demonstrate compliance with all applicable federal, state, and local water quality standards. POLICY 85.1.6: No garbage or untreated sewage shall be dis- charged into coastal and interior surface waters. POLICY 85.1.7: The county shall initiate a wellfield protec- tion program to prevent the contamination of shallow wells by pollutant generating develop- ment including surface water runoff (see Goal 41). POLICY 85.1.8: Valid permits and inspection shall be required prior and subsequent to drilling operations for wells, elevator shafts, foundation holes, and test borings. POLICY 85.1.9: The county shall participate in a program to plug improperly constructed wells which are detrimental to ground water resources. Goal 87 of the Lee Plan provides in pertinent part: GOAL 87: WATER RESOURCES. To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability. OBJECTIVE 87.1: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. POLICY 87.1.1: Natural water system features which are essen- tial for retention, detention, purification, runoff, recharge, and maintenence of stream flows and groundwater levels shall be iden- tified, protected, and managed. POLICY 87.1.2: The county shall recognize and encourage water and wastewater management, provided that such management does not exceed the natural assimi- lative capacity of the environment or appli- cable health standards. Appropriate water and wastewater management includes, but is not limited to, groundwater and aquifer recharge, spray or drip irrigation, gray-water systems, agricultural production, and other recycling techniques. POLICY 87.1.3: Freshwater resources shall be managed in order to maintain adequate freshwater supplies during dry periods and to conserve water. POLICY 87.1.4: Development designs shall provide for maintain- ing surface water flows, groundwater levels, and lake levels at or above existing conditions. POLICY 87.1.5: The county shall cooperate with the United States Geological Survey, South Florida Water Management District, and state agencies to develop an area-wide water resources plan emphasizing planning and management of water resources on the basis of drainage basins; and addressing the needs of the existing and potential built environment, natural hydro- logic system requirements, and freshwater flow impacts on estuarine systems. POLICY 87.1.6: The county shall continue to support a moni- toring program of existing baseline conditions of water resources. POLICY 87.1.7: The county shall cooperate fully with emer- gency water conservation measures of the South Florida Water Management District. The WPO Lee County Ordinance 89-30 provides for potable water wellfield protection. It establishes wellfield protection zones and sets out a protection zone map: showing the location on the ground of the outer limits of protection zones for present public utility potable water supply wells and wellfields which are permitted to pump 1,000,000 gallons of water per day or more. The Florida Cities-Waterway Estates Wellfield shall not be included within the protections established by this ordinance or depicted on the Protection Zone Maps. Chapter 10 of the ordinance is a "sunset provision" confirming that the ordinance was adopted "for the purpose of providing interim protection to existing potable water wellfields which are permitted to pump one million gallons of water or more per day" and explaining: The County is engaged in the creation of a Raw Water Management Authority to insure the protection of the public potable water supply. Potable water wellfields make up a portion of the available public potable water supply. In adopting this ordinace, the Board has taken the first step toward creating such an author- ity and providing an overall program for the protection of the public water supply. The wellfield protection ordinance is conceived as a part of that program. In order to insure that the wellfield protec- tion efforts of the County are incorporated into any overall program to protect the public potable water supply this ordinance shall expire and be of no further force and effect as to any acts occurring on or after September 1, 1991. The data and analysis supporting the Lee Plan clearly was based on the assumption of a 1 MGD threshhold. 5/ Section 4.05 of the Ordinance provides: Certain existing or proposed public and quasi-public land uses and activities may be declared exempt from the provisions of this Ordinance by the Board of County Commission- ers. This exemption shall be granted only upon a finding made by the Board in a public meeting that the existing or proposed land use or activity serves a public need which overrides the intent and purpose of this Ordinance and that it would be economically impractical or scientifically impossible for the land use or activity to comply with the requirements of this Ordinance or be relo- cated to an area outside of the protection zones established by this Ordinance. When declaring such an exemption, the Board of County Commissioners shall limit it to the extent necessary to enable the existing or proposed public or quasi-public land use or activity in question to be conducted within a protection zone while still serving the intent and prupose of this Ordinance to the extent which is economically practical and scientifi- cally possible. The Board may attach any con- ditions to the grant of any exemption that it deems appropriate. Section 3.01 of the Ordinance states: Four types of Protection Zone[s] have been established using scientific criteria relating to the physical characteristics of the water supply aquifer and the transport gradients caused by either natural forces or induced pumpage of the wellfields (see Appendix A)." The transport times associated with the Pro- tection Zones are designed so as to allow adequate time to carry out mitigating proce- dures to prevent wellfield contamination in the event of spillage of any Regulated Substance. Section 3.01.A. establishes and defines Protection Zone 1 as: "All land situated between the well(s) and the water table aquifer 6-month travel time zone demarcation." Section 3.01.B. establishes and defines Protection Zone 2 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table aquifer 1-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation. Sandstone 1-year travel time zone demarcation. Section 3.01.C. establishes and defines Protection Zone 3 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 1-year travel time zone demar- cation and the water table aquifer 5-year travel time zone demarcation. Sandstone aquifer 1-year travel time zone demarcation and the Sandstone aquifer 5-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation and the Lower Tamiami 5-year travel time zone demarcation. Section 3.01.D. establishes and defines Protection Zone 4 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 5-year travel time zone demar- cation and the water table 10-year travel time zone demarcation. Sandstone 5-year travel time zone demarca- tion and the Sandstone 10-year travel time zone demarcation. Lower Tamiami 5-year travel time zone demar- cation and the Lower Tamiami 10-year travel time zone demarcation. Section 3.02.B. of the Ordinance provides essentially that, where the location of property and buildings is within more than one protection zone, the most restrictive protective zone applies. Section 4.04 of the Ordinance prohibits liquid waste and solid waste disposal in Protection Zones 1, 2, and 3. In those zones, it also prohibits wastewater effluent disposal, except for public access reuse of reclaimed water and land application (under the conditions set forth and as defined in Chapter 17-610, Part III, F.A.C.). As for the exception, it provides: "Where public access reuse is permitted the chloride content shall be no greater than 500 mg/l." In Protection Zones 1 and 2, it also prohibits "the use handling, production, or storage of Regulated Substances [defined in Section 4.03 of the Ordinance] associated with land uses or activities regulated by this Ordinance in quantities greater than those set forth in Section 4.02.A." and "[e]arth mining within a five hundred foot (500') radius of an existing wellhead." The only prohibition in Protection Zone 4 is against "any activity regulated by this ordinance which stores, handles, uses, or produces any Regulated Substance, in quantities greater than those set forth in Section 4.02.A., which does not obtain a valid operation permit as set forth in Section 6.02." Thus, the Ordinance does not by its terms prohibit landfills, sludge disposal or rapid rate percolation ponds in Zone 4. Section 4.03 of the Ordinance, entitled "Regulated Hazardous or Toxic Substances," defines regulated substances in part in terms of federal and state regulations that are referenced, but not reproduced, in the ordinance. Section 4.02 of the Ordinance provides that it applies only to a particular land use or activity, whether that land use or activity is classified as a residential or commercial use, when either the aggregate sum of all quantities of any one Regulated Substance, or the aggregate sum of all Regulated Substances, on a given parcel or in a certain building exceeds one hundred and ten (110) gallons if the substance is liquid, or one thousand, one hundred and ten (1,110) pounds if said substance is solid. It also provides that the Ordinance applies to all storage facilities for petroleum products which are not regulated by Section 376.317, Florida Statutes, or Chapter 17-61, Florida Administrative Code. Section 4.04 of the Ordinance also provides that, within the protection zones: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." Under Section 4.04 of the Ordinance, "partially treated sewage from residential septic tank systems" are not regulated in any of the protection zones. Section 4.05.B.5. of the Ordinance provides an: Exemption for Retail Sales Activities. Retail sales establishments that store and handle Regulated Substances for resale in their original unopened containers shall be exempt from the prohibition in Sub-Sections 4.04.A.1. and 2. provided that those estab- lishments obtain an Operating Permit pursuant to Section 6.02. No operating permit is re- quired in Protection Zones 3 and 4. Other Relevant Facts The WPO's Coverage. The support documentation in support of the Lee Plan was based on the assumption of a 1 MGD threshhold. The evidence as a whole does not suggest that was it contemplated at any time prior to adoption that the Lee Plan would require a wellfield protection ordinance that protects all potable water wellfields. 6/ Although the documentation in support of the Lee Plan focuses on wellfields permitted to pump 1 MGD or more and serves an indication that the Lee Plan does not require all potable wellfields to be covered by a protection ordinance, nothing in the Lee Plan or the supporting documentation establishes a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more. The focus of the WPO is on the protection of wellfields from contamination from the ground surface. Two wellfields permitted to pump more than 1 MGD are not covered by those protections. They pump from deep aquifers. The confining layers above those aquifers protect them from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into those aquifers be properly grouted so as to prevent contamination from the ground surface. As a result, they are adequately protected. 7/ The Florida Cities-Waterway Estates wellfield pumps from both the surficial aquifer and from a deeper aquifer known as the mid-Hawthorn. The confining layers above the mid-Hawthorn aquifer protect it from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into the mid-Hawthorn be properly grouted so as to prevent contamination from the ground surface. As for the wells pumping from the surficial aquifer, no party presented evidence on which findings of fact can be made on the issue whether it is fairly debatable to exclude the Florida Cities- Waterways wellfield from the WPO's protections against contamination from the ground surface. There was no evidence on which a finding can be made as to why they were excluded from the greater protections the WPO affords to other wellfields permitted to pump 1 MGD or more. 8/ The evidence was that 90% to 95% of Lee County's potable water supply is either covered by the WPO, with its 1 MGD threshhold and exclusion of the Florida Cities-Waterway Estates wellfield, or pumps from deep aquifers that do not need the WPO's protections from contamination from the ground surface. The Department of Environmental Regulation's so-called G regulations adopted in 1986 utilize a 100,000 gallon a day threshhold for coverage. This threshhold was selected to coincide with the jurisdiction of, and to extend coverage to all wells requiring a permit from, Florida's water management districts. The G-I regulations were successfully challenged and still are not in effect. The federal Environmental Protection Agency recently has criticized the G Although it is written in general terms to leave open the possibility of other similar applications, the evidence reflects that the primary purpose of the Section 4.05 exemption for "certain existing or proposed public and quasi- public land uses and activities" is to acknowledge and permit consideration to be given to the practical impact of possible future expansion of the regional airport located in Lee County. Since there are wellfields in the vicinity that possibly could be impacted by such an expansion, the exemption acknowledges that it might be more sensible, feasible, practical and economical to replace the wellfields than to move the regional airport. If this happens and, on a case- by-case basis, the County utililizes the exemption provision, it may be necessary to phase out the wellfields and to allow some degradation of parts of the wellfield, subject to close monitoring pending complete replacement of the wellfields. Alleged Inadequate Regulation of Pollution Sources. Rock and sand mine operations, which are prohibited within 500' of a wellhead, create open, water-filled holes in the ground. As the Petitioner correctly points out, mining operations can thereby create direct conduits that can lead contaminants to underlying aquifers. But there is evidence in the record to justify the WPO's treatment of rock and sand mines on several bases: first, these mines are regulated on a case-by-case basis through a permitting process; second, mines that have been permitted are relatively shallow and reach into, but do not penetrate, the layer confining the aquifers in the vicinity of the mines that are sources of potable water; third, the County has required as a condition of these permits that the pits be prohibited from serving as storm water retention ponds in the future so as to prevent contaminants from gaining entry to the potential conduit; and, finally, the evidence provides assurances that, even if contaminants somehow find their way into the pits, their concentrations would be low enough that sufficient "head" to penetrate the confining layers would not be generated. The WPO does not prohibit "zones of discharge." A "zone of discharge" is a deliberate decision on the part of a regulatory agency to utilize a limited part of the groundwater as part of the process of diluting contaminants. There was some expert testimony that, in a general and theoretical or academic sense, the concept of a "zone of discharge" is inconsistent with wellfield protection. They are not permitted in DER's G The WPO permits landfills, sludge disposal and rapid rate infiltration ponds in Protection Zone 4 (delineated by the ten-year travel time). The evidence was that landfills, at least, are subject to Department of Environmental Regulation (DER) and other regulation and permitting requirements that would provide adequate wellfield protection. There was no evidence or argument presented by any party to clarify how the other activities--sludge disposal and rapid rate infiltration ponds--are regulated. The Petitioner's evidence in general did not address the existence or absence of regulations (both County and other regulatory agencies) pertaining to the various activities of which it complains to rule out the possibility that they might meet the objectives and policies of the Lee Plan. The WPO does not contain its own stormwater regulations. Instead, it provides: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." The Petitioner offered, as evidence in support of its position that the DER and SFWMD stormwater regulations are inadequate, expert testimony to the effect that the DER and SFWMD regulations are "performance standards," not "directed to groundwater monitoring, and it's not quality impact related." A "performance standard" requires certain things to be done with stormwater in the expectation that groundwater contamination would be eliminated or minimized. The Petitioner's witnesses related that DER decided that "protection of public water supply has to be protected to above and beyond a performance standard" and opted for specific water quality criteria in its G-I groundwater. But nothing in the Lee Plan requires utilization of the G-I rule approach, and the Petitioner's expert did not opine that failure to do so would render the WPO inconsistent with the Lee Plan. The Section 4.05.B.5 retail sales exemption presents a risk of contamination of a wellfield, but the risk is low. In all likelihood, it would take a fire or some other similar catastrophe for the possibility of actual harm to a wellfield to materialize from the small risk involved. Other County Measures Relevant to the WPO. The County has several programs, other than the WPO, and in addition to the Raw Water Management Authority mentioned in the WPO, 9/ that impact wellfield protection. It has a program to encourage (and in some cases require) the reduction and elimination of the use of septic tanks and package sewage plants. It is building a new sewer district. It has taken over the from DER the function of inspecting the installation of underground storage tanks and the remediation (clean up and repair) of tanks storing liquid petroleum products in an attempt to do the job better. There also was evidence that the County has restricted density in potential future wellfield locations and their recharge areas to one unit per ten acres. (The Petitioner's own witness testified that, other than an outright ban on septic tanks, density reduction is the only way to address the problem of septic tanks.
The Issue The position of BCHD regarding the application was stated in its letter dated May 14, 1975 which denied the application on two grounds: The proposed installation would not be 36 inches above the water table elevation during the wettest season of the year, and The proposed installation would require more than reasonable maintenance and that without maintenance it would not function in a sanitary manner, create a nuisance, health hazard or endanger the safety of any domestic water supply. Seymour's position was that the system proposed in the third application was designed by a sanitary engineer to overcome the objective stated above when installed according to the plans submitted.
Findings Of Fact Testimony developed that the application under consideration was the third such application submitted by the applicant. A copy of said application and supporting documents were made a part of the original petition. This application was investigated by Willis A. Hillyer who had taken the photographs introduced as Exhibit 1 relative to the investigation of the preceding application. These photographs indicated that there was standing water on the property from October 7 until October 25, 1974, which had been during the wettest portion of the year 1974. Hillyer concluded from the duration of the water standing on the low lying areas of Seymour's property that the water table was approximately five (5) inches above the lowest levels of the property. Hillyer then determined that the average height of the pad on the property was 25.7 inches above the lowest level of the property, and nineteen (19) inches above the crown in the road adjoining the property. This resulted in a difference of nineteen (19) inches between the highest water level at the wettest time of the year from the lowest point in the proposed drain field. Hillyer also testified that having such a drain field built on a pad filled in above the normal ground level was a potential health hazard because effluent could leak out from the edges of the pad. The pad shown in Exhibit 1 is not, however, the size of the pad proposed in the third application (100' x 140'). Hillyer's testimony was corroborated by Norman Tuckett who stated further than the plans attached to the third application indicated a gravity flow system which would be prone to maintenance problems and which, if it malfunctioned, would be potentially hazardous. Frank L. Kleeman and Raymond L. Payton testified for the applicant explaining the system which they had designed and drawn to overcome the grounds given by BCHD for rejection of the applicant's second application which were similar to those given for denial of the third application. Kleeman's design would take influent from the proposed single family residence to he placed on the property and placed it into a CA900 aerobic treatment tank. In this unit solids would be separated and allowed to filter slowly to the bottom of the tank. Periodically the liquid would be pumped through tubing above the liquid level of the tank where air would be drawn into the stream by the venturi principle accelerating the oxidation of waste. There are provisions for the auxiliary pumping of compressed air into diffusers mounted on the bottom of the tank, if required to achieve the optimum aerobic effect. A portion of of the liquid being pumped would be diverted into a settling tank where it would be held for a predetermined period of time to allow any remaining solids to settle. Thereafter, this "liquor" would be pumped through a chlorinator, have an amount of chlorine dissolved in it and be pumped into a chlorine contact chamber to allow the chlorine a chance to eliminate coliform bacteria. This tank would be constructed so that incoming fluids are pumped in at the bottom forcing the treated fluids up and out a gravity flow into the drain field. The tank's size (although not indicated on the plans) would be dependent upon the needed capacities as determined by existing table and formulas to provide a 30 minute treatment time as stated in the plan. This exposure time was generally accepted to be sufficient to kill the bacteria. Kleeman and Payton also testified that the contact chlorinator was relatively simple and was maintained on a service contract by the installers of the system. Such maintenance of a system, represented by Tuckett to be commonly used in home swimming pools, would appear to meet the reasonable maintenance standards of the rules. Kleeman indicated that if the system malfunctioned the pumps were designed to shut down and stop the flow of untreated materials from the aerobic treatment tank. After these pumps shut down, an alarm would sound in the treatment utility room warning the users that the equipment required maintenance. The aerobic tank would have enough capacity that it could accept raw sewage for 3-4 days after the equipment malfunctioned giving the users a time cushion in which to obtain maintenance assistance. The drain field according to Kleeman would be installed just under the surface of a pad (100' x 140') which would be filled to 18 inches from the crown of the adjoining road. According to Kleeman this would be sufficient to place the drain field 42 inches above the water table and to prevent leakage from the pad area. Kleeman's testimony raised a factual dispute between Kleeman and Hillyer, because Hillyer's measurements indicated that the existing pad was more than 18 inches above the crown of the road. If Hillyer was correct then the level of drain field designed by Kleeman would not be 36 inches away from the highest water table measured in October, 1974. The applicant presented evidence that the water level since October, 1974, has not been as high. The Division presented evidence that the area was suffering a drought which had lowered the water table. The Hearing Officer notes the application in question was submitted in January, 1975, and it would appear procedural sound and expedient for the BCHD to utilize water table data from October, 1974 for a January, 1975 application. The applicant indicated on the record his willingness to build or fill a pad which would place the drain field 42 inches above the high water table level as designed by Kleeman. The Hearing Officer finds that the water table level existing in October, 1974, would he the appropriate measure for considering this January, 1975 application. The Hearing Officer having examined Exhibit 1 finds that the water surrounding the pad is of uniform level in many photos approaches the edge of the paved road indicated in the Kleeman plan. It would appear therefore that measurements taken by Hillyer would be corrected assuming that the crown would be 3 to 6 inches above the water level, an estimate made by James M. McLaughlin, the applicant's surveyor. Although McLaughlin's testimony is not conclusive, the Hearing Officer finds that the evidence taken as a whole supports the proposition that a pad 18 inches above the crown of the road would not raise the proposed drain field sufficiently to place it 36 inches away from the water table level existing in October, 1974.
The Issue The issue is whether the Suwannee River Water Management District (“the District”) should renew Seven Springs Water Company’s (“Seven Springs”) water use permit.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The District is a water management district created by section 373.069(1), Florida Statutes. It is responsible for conserving, protecting, managing, and controlling water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of Environmental Protection, is authorized to administer and enforce chapter 373, including statutes pertaining to the permitting of consumptive water uses. The District also administers and enforces rules set forth in Florida Administrative Code Chapter 40B. Seven Springs is a fourth generation, family-owned company. Through an exclusive water sales and extraction agreement and subsequent amendments thereto, Seven Springs has the right to withdraw water from wells1 located on 7300 Northeast Ginnie Springs Road, High Springs, Florida 32643-9102. The water withdrawn by Seven Springs is piped to the adjacent High Springs bottled water facility. Both of the aforementioned properties are located in Gilchrist County and within the District’s boundaries. 1 Groundwater is withdrawn from two 10-inch diameter production wells. A third production well is proposed and would replace one of the aforementioned wells once placed into service. Seven Springs’ existing water use permit was originally issued by the District in 1994. On March 15, 2019, Seven Springs submitted its application for a five-year renewal of that permit. In 1996, the property where the High Springs bottled water facility is located was sold by Seven Springs to AquaPenn. The parties executed a contract making Seven Springs the exclusive provider of water to the bottled water facility. The bottling plant was then constructed in 1998. After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Waters of North America (“Nestle” or “NWNA”). Each time the High Springs plant was sold, the aforementioned contract with Seven Springs was also sold to the purchaser. Seven Springs has thus been the sole source of spring water for the High Springs plant since its construction in 1998. Seven Springs Applies for a Permit Renewal Seven Springs submitted an application to the District on March 15, 2019, to renew its water use permit. In a section of the application entitled “Water Use Category,” Seven Springs marked a box indicating its intended water use was “commercial/industrial.” The application gave the following examples of commercial/industrial uses: “service business, food and beverage production, cooling and heating, commercial attraction, manufacturing, chemical processing, [and] power generation.”2 Seven Springs included supporting information with its application. With regard to “impact evaluation,” Seven Springs stated that: [n]o increase from the current permitted groundwater withdrawal volumes is requested. The current permitted withdrawal of 420.48 million gallon[s] per year (MGY) and average annual daily rate (ADR) of 1.152 million gallons per day (MGD) represents between 0.6% and 0.9% of the combined 2 That was the only Water Use Category that had any connection to extracting water and piping it to a facility for bottling. The other categories were agricultural, landscape/recreation, mining/dewatering, public supply, environmental/other, institutional, and diversions/impoundments. Ginnie Springs complex flow rate which has been approximated to range between 131 and 191 MGD. For reference, the 2018 Suwannee River Water Management District (SRWMD) permitted groundwater withdrawals within the Ginnie Springs complex springshed for agriculture is approximately 29 MGD which represents between 15% and 22% of the approximated spring flow. Seven Springs identified the “requested water use” by stating “Seven Springs is a bulk water provider to the adjacent bottled water facility. Additional information will be provided upon request.” Seven Springs completed a “Water Balance Worksheet” indicating it planned to withdraw 1.152 mgd from an aquifer and use 1.152 mgd as “bottled water for consumer consumption.” The District issued its first request for additional information (“RAI”) on April 2, 2019, requesting that Seven Springs: [p]rovide the following information in order to justify that the requested beverage processing allocation is [a] reasonable-beneficial [use] and [consistent] with the public interest: A market analysis; A schematic of water uses from the withdrawal point to the facility; and Schedule of construction and completion for any proposed bottling facility expansion The District also asked Seven Springs to provide the following information in order to justify the requested beverage processing demand: A facility water budget, indicating water used for each individual process, potable uses, and fire suppression (if fire suppression does not come from an isolated source; and An account of all water losses and conservation practices throughout the facility. Seven Springs responded via a letter dated June 27, 2019. In response to the District’s request for information justifying that the requested beverage processing allocation is a reasonable-beneficial use and consistent with the public interest, Seven Springs stated, in pertinent part, that: [w]ater sourced from the withdrawal locations P-1 and P-2 is routed via underground pipeline to the 127,992 square foot Nestle Waters of North America (NWNA) High Springs Bottling Facility (Facility) . . . The underground pipeline supplies water only to the NWNA Facility. The NWNA Facility also utilizes two fire wells as shown on Figure 1 for fire suppression supply. As for the District’s request for a facility water budget and an account of all water losses and conservation practices throughout the facility, Seven Springs stated, in pertinent part, that “all but between 3-4% of the requested water withdrawal will be used within the NWNA Facility for bottled water use.” Seven Springs also stated that “[w]ater losses at the NWNA Facility range from 3-4% and are from net fills, cleaning and leaks.” Seven Springs attached a letter from Nestle’s Natural Resources Manager describing the market for bottled water and the Nestle-owned facility to which the water at issue was to be piped: Nestle Waters North America (NWNA) reports to Nestle Waters and is the world’s leading bottled water company with an estimated 11 percent of the world’s market share with 51 bottled water brands while employing nearly 31,000 at over 91 factories as of 2017. NWNA is the third largest non-alcoholic beverage company in the United States by volume and offers 11 bottled water brands. Production volumes at the NWNA High Springs Bottling Facility (Facility) are influenced by a variety of factors including (but not limited to) weather, market demand, the cost of fuel and electricity, and overall production efficiency. As a result, it is difficult to predict a “straight-line” trend for long-term usage volumes over time. However, NWNA continues to project steady, solid market annual growth rates for bottled water in the neighborhood of 2.1% over the next ten years. The Facility is in the process of adding bottling capacity, and expects significant increase in production volumes equal to the requested annual average daily withdrawal volume of approximately 1.152 million gallons of spring water by Seven Springs Water Company. The District issued a second RAI on July 12, 2019, asking Seven Springs to provide the following information: The market analysis and the planned facility expansion must justify the requested groundwater demand of 1.1520 mgd. The highest reported water use at the facility over the last 4 years was 0.2659 mgd. Please provide the data used to calculate the 2.1% projected market growth and a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use. Please provide a facility water budget, indicating water used for each individual process, potable uses, and fire suppression. The water budget should include water losses throughout the facility. A facility water budget may be submitted in the form of a schematic or table and all water uses must add to the requested groundwater demand of 1.1520 mgd. Seven Springs submitted a response on October 31, 2019, providing the following explanation regarding the projected market growth and the bottling facility expansion: On 28 December 2018, Nestle Waters North America (“NWNA”) purchased the High Springs Plant (“Plant”) that Seven Springs has supplied with spring water by pipeline for over twenty years. See Attachment A to this letter. Seven Springs has contracted with NWNA to continue to supply the Plant with spring water. NWNA has agreed to purchase spring water from Seven Springs up to the permitted allocation of 1.152 million gallons per day (“mgd”) annual average for a period of time that exceeds the requested 5-year permit duration. NWNA is one of the largest non-alcoholic beverage companies in the United States by volume and offers 11 bottled water brands. The industry growth projections for bottled water consumption described in Section III of the attached Seven Springs Report show that demand is enough to utilize the requested/permitted amount with the 5-year duration of the proposed permit. Originally the Plant was designed to have four production lines for bottled water, but only two have been built to date. NWNA began operating the Plant in February of this year and has already completely renovated one production line and has begun work on the second line. When all four lines are up and running, the Plant will be capable of using all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. A schedule of construction/implementation for the Plant expansion is set forth in Section IV of the attached Seven Springs Report. Seven Springs attached a revised water balance worksheet reaffirming that it planned to extract 1.152 mgd from an aquifer. The District issued a third RAI on November 25, 2019, seeking the following information and citing pertinent portions of the Water Use Permit Applicant’s Handbook (“the Handbook”) that has been incorporated by the District into chapter 40B: In the RAI response dated October 31, 2019, reference was made to a contract between Nestle Waters North America (NWNA) and Seven Springs Water Company. If this contract is a written document (paper or electronic), please provide a copy of the contract (with proprietary or sensitive information redacted, if necessary). The non- redacted portion of the contract [or] other document provided must, at a minimum, demonstrate the asserted reasonable-beneficial use and the parties’ respective obligations to supply and purchase water and the term thereof. [Section 2.3.4.1 (i), A.H.] The reported maximum use at the facility is 0.2659 mdg (SRWMD Water Use Reports for permit # 2- 041-218202). When the 4.7% annual growth rate is applied to the reported use, it does not result in 1.152 mgd at the end of the requested permit duration. Please provide justification for the requested 1.152 mgd allocation. [Subections 2.3.4.1 and (g), A.H.] The proposed capacity of product lines three and four is inconsistent with both the previous reported water use at this facility (0.24 mgd per product line, page 4 of the Geosyntec Report) and the current NWNA business practice (0.183-0.202 mdg per product line) at the Lee, FL facility. Please provide an explanation of why the capacities for product lines three and four are higher than previous business practices. [Subsections 2.3.4.1 (a) and (j), A.H.] The water budget provided (table 1 in section IV of the Geosyntec report) is unclear as to whether the entire requested allocation will be bottled within the facility located at 7100 NE CR340 in High Springs, FL, or if a portion of the requested allocation will be transported in bulk to another facility to be bottled. If bulk water transfer is anticipated, please provide the following information to demonstrate reasonable-beneficial use at the facility receiving the bulk transported water (tanker truck): Whether there is a need for the requested amount of water at the receiving facility; The location of the receiving beverage processing facility; Plan to convey water (quantity and frequency of transport) from withdrawal facility to the receiving beverage processing facility; A site plan for the receiving beverage processing facility; Schedule for completion of construction of the receiving beverage processing facility (if applicable); Contractual obligation to provide water for beverage processing (if applicable); Other evidence of physical and financial ability to process the requested amount at the receiving beverage processing facility; and Documentation (references, studies, contracts, etc.) that support the materials provided for [in] a. through g. (above). [Section 2.3.4.1., A.H.] Seven Springs responded to the third RAI on January 14, 2020. With regard to the contract sought by the District, Seven Springs stated the following: Please note that the District has not previously requested any information concerning a contract between Seven Springs and Nestle Waters North America (“NWNA”) in either the first RAI dated April 2, 2019 (“First RAI”) or the second RAI dated July 12, 2019 (“Second RAI”). Furthermore, Subsection 2.3.4.1, A.H., does not require contractual information [to] be submitted as part of a Water Use Permit application, but rather states that the District will consider certain information, which may include contractual obligations. Seven Springs has previously provided information in accordance with Subsection 2.3.4.1, A.H., demonstrating that the continued use is reasonable, beneficial, and in the public interest. Therefore, pursuant to Section 120.60(1), F.S., the District is not authorized by law or rule to require a copy of the contract for issuance of this straight renewal permit request. The contract contains information that is subject to a non-disclosure agreement between the parties and has propriety business information within it. As we discussed at our meeting with District staff regarding this matter, in order to address the specific terms in the contract that District staff inquired about, the parties have executed a Memorandum of Agreement (“MOA”) summarizing pertinent terms of the contract regarding exclusivity, duration and water quantity. The MOA is attached as Exhibit A. This MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility (the “Plant” or “High Springs Plant”), which NWNA owns and operates, up to the full permitted allocation for a period of time that significantly exceeds the requested 5-year permit duration. Seven Springs attached its Memorandum of Agreement (“the MOA”) with Nestle, but the MOA description of the parties’ contract was limited to the following: The term of the Contract extends to 2096. The Contract requires NWNA to purchase from Seven Springs all water pumped, extracted, processed or sold by NWNA through the High Springs Plant, with such amounts only being limited by the average and maximum daily limits set forth in water use permit No. 2-93-00093 (together with any modifications and renewals thereof) (“Permit”). The Contract requires Seven Springs to be the exclusive source for all water bottled at the High Springs Plant.[3] 3 The MOA was amended on May 27, 2020, to add a provision stating that “[a]s long as NWNA meets its payment obligations under the Contract, the Contract requires Seven Springs to exclusively provide all water withdrawn under the Permit to NWNA’s High Springs Plant.” With regard to the request for information regarding product lines 3 and 4 at Nestle’s High Springs plant, Seven Springs stated in the January 14, 2020, letter that: as explained in the Second RAI response, NWNA is expanding the High Springs Plant and has already completed the renovation of one production line and has begun work on the second. As previously explained, when all four (4) lines are up and running, the High Springs Plant will have the production capacity to utilize all of the proposed/permitted annual average daily water allocation of 1,152,000 gallons. NWNA intends on utilizing the entire permitted quantity for its product distribution throughout the proposed five- year permit term and beyond. The justification for the requested 1.152 million gallons per day (“mgd”) is the agreement by NWNA to purchase the spring water from the applicant for the permit duration as well as the expansion of the production lines at the High Springs Plant. * * * To date, NWNA has spent over $40 million on updating, renovating and other work at the High Springs Plant. Additionally, Phase I of the High Springs Plant expansion project, which has not yet been completed, is budgeted to have a projected construction budget of $27.6 million. The large amount of capital invested and expended by NWNA on the Plant is a clear indication that the use is both real and of NWNA’s intent to utilize the full renewal quantities. Seven Springs offered more information regarding the capacity of the High Springs plant: Bottled water lines are designed for each facility and are not purchased “off the shelf,” but designed specifically for each facility and use. Through time, increasingly better and more efficient bottling technology and equipment has been developed. NWNA has already completely renovated the first line at the Plant, as seen by the District staff at the recent site tour, which has increased the efficiency, speed, and production capacity at the Plant. The old line that was replaced could produce approximately 700 bottles per minute, whereas the new line produces up to approximately 1,300 bottles per minute. Current projections indicate that the renovation of the second line will be completed in year 2020. This will complete Phase 1 of the renovation and expansion of the Plant. Phase 2 of the Plant expansion will include two additional lines that will be engineered and custom designed to further meet the capacity and product needs for the facility. In the second RAI response, it was stated that NWNA is expanding the High Springs Plant to add proposed lines 3 and 4, has already completely renovated one production line and begun work on renovating the second. This information was provided in response to RAI item 1 of the Second RAI which, in relevant part, asked for “a schedule of construction/implementation for the bottling facility expansion reported [in] Attachment A as justification for the requested groundwater use.” The increase in capacity in new lines 3 and 4 is planned as part of the Phase 2 expansion. As explained above, each line can be designed for the capacity needed. As for the District’s inquiry about whether a portion of the requested allocation was to be tankered to another facility, Seven Springs stated the following: There is no amount of water included in the water budget for tankering water. Seven Springs (the applicant) does not tanker any water to the Plant; all spring water is conveyed by pipeline to the Plant. Nor does Seven Springs have any plans to tanker water during the term of the permit.[4] Please note that the District did not request any 4 As will be discussed herein, Seven Springs subsequently changed its position on tankering. information regarding bulk transported water (tanker truck) in either its First RAI dated April 2, 2019 or its Second RAI dated July 12, 2019. Finally, Seven Springs concluded its response to the third RAI by stating it was not going to respond to any more requests for information: The information Seven Springs has submitted to the District to date demonstrates reasonable assurance that the Application meets the conditions for issuance for renewal of an existing water use permit at the same allocation of water quantities, and the Application is complete. Some of the questions asked in the Third RAI as indicated are not authorized by law or rule. Therefore, pursuant to Section 120.60(1), F.S., Seven Springs hereby requests that the District deem the Application complete and proceed to process its proposed agency action to renew its water use permit. On March 2, 2020, Warren Zwanka, the Director of the Division’s Resource Management Division, wrote a memorandum to the District’s Deputy Executive Director for Business and Community Services stating that the District’s staff was recommending that the District’s Governing Board deny Seven Springs’ renewal application. In doing so, Mr. Zwanka gave the following explanation: Section 40B-2.361(2), Florida Administrative Code (F.A.C.) provides that all permit renewal applications shall be processed as new permits, and shall contain reasonable assurances that the proposed water use meets all of the conditions for issuance in rule 40B-2.301, F.A.C., and the Water Use Permit Applicant’s Handbook (Handbook). Section 2.3.4.1 of the Handbook contains factors that must be considered for beverage processing water uses. The definition of “beverage processing use” set out in section 1.1 of the Handbook specially includes the sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption. The application as submitted does not provide reasonable assurances that the proposed beverage processing use is reasonable-beneficial and consistent with the public interest as described in the attached staff report. The staff report referenced by Mr. Zwanka described the Handbook provisions that Seven Springs’ renewal application supposedly failed to satisfy: Section 2.3.4.1(i) requires the District to consider the contractual obligation to provide water for beverage processing. The applicant declined to provide a copy of its contract with NWNA and, instead, provided a memorandum of this contract. This memorandum does not show that [the] applicant is obligated to provide any or all of the requested allocation to NWNA. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(j) requires the District to consider evidence of the physical and financial ability to process the requested amount of water. The applicant has requested an allocation of 1.1520 mgd. As part of the application, the applicant reported the actual use of water at the facility for the years 1995 through 2019. The highest reported actual use of water at the facility was for 2006, which showed an average annual water use of 0.3874 mgd (page 63 of the January 14, 2020 RAI response). As the highest reported actual use of water in the facility was significantly less than the requested allocation, the previous use does not provide evidence of the physical ability to process the requested allocation. The applicant has asserted that the facility is being renovated to have the physical ability to process the requested allocation. But the applicant has failed to provide sufficient evidence showing that such renovations will create the necessary physical ability. Therefore, the required reasonable assurance has not been provided. Section 2.3.4.1(c) through (f) and (h) require the District to consider certain matters concerning the beverage processing facility or facilities where the use will occur. The applicant has only provided information for the High Springs facility, but has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur. Therefore, the required reasonable assurance has not been provided. The DOAH Proceedings On March 6, 2020, Seven Springs filed a Petition seeking to challenge the District’s preliminary decision to deny the renewal application.5 The District referred this matter to DOAH on March 9, 2020, DOAH Case No. 20-1329 was assigned to this matter, and the undersigned issued a Notice on March 24, 2020, scheduling a final hearing for July 21 through 23, 2020. Seven Springs filed a Motion in Limine on June 18, 2020, seeking to prohibit the District from raising grounds for denial that were not set forth in the staff report referenced by Mr. Zwanka. Based on its review of discovery responses, Seven Springs argued that the District was preparing to provide testimony or evidence on issues that were not identified in the staff report. On June 29, 2020, the undersigned issued an Order partially granting Seven Springs’ Motion in Limine: The instant case is before the undersigned based on a “Motion in Limine” filed by Petitioner on June 18, 2020. After considering the arguments set forth in the Motion in Limine and the Response thereto, the undersigned rules that, at this point, the potential 5 The staff recommendation in the District’s March 3, 2020, notice and the enclosed Water Use Technical Staff Report is a proposed agency action which Seven Springs could challenge by petitioning for a formal administrative hearing under section 120.57, Florida Statutes. See generally Hillsboro-Windsor Condo. Ass'n v. Dep't of Nat. Res., 418 So. 2d 359, 361–62 (Fla. 1st DCA 1982) (treating a DNR staff recommendation as the equivalent of a notice of intent of proposed final agency action). grounds for denying Petitioner’s renewal application shall be limited to the reasons set forth in the “Water Use Technical Staff Report” dated February 27, 2020. See M.H. v. Dep’t of Children & Fam. Svcs., 977 So. 2d 755, 763 (Fla. 1st DCA 2008)(stating that “in this case, DCF offered a precisely formulated reason for its denial of the renewal of the Foster Parents' license. At the administrative hearing, the ALJ properly restricted his consideration of the matter to the specific question that DCF itself had framed as the issue to be decided.”). In order for Respondent to properly raise additional reasons for denying Petitioner’s renewal application, it is incumbent on Respondent to promptly set forth those grounds in a formal pleading and demonstrate that Petitioner will suffer no prejudice. See generally Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)(stating that “[p]redicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint.”) Respondent fails to cite any controlling authority to support its argument that disclosure of additional grounds of denial during the discovery process amounts to sufficient notice. On July 8, 2020, the parties filed a joint motion requesting that the final hearing be continued for at least 30 days, and the undersigned issued an Order on July 23, 2020, rescheduling the final hearing for October 14 through 16, 2020. The parties filed another joint motion on July 31, 2020, asking that jurisdiction be relinquished to the District. In support thereof, the parties stated that Seven Springs and the District’s staff had reached a proposed settlement agreement that was contingent on the approval of the District’s governing board. After the relinquishment of jurisdiction, the District’s staff would recommend to the governing board that “a proposed water use permit renewal be issued to [Seven Springs] consistent with [the] Water Use Technical Staff Report which is attached hereto as Exhibit ‘A.’” The aforementioned exhibit indicated that Seven Springs was seeking a permit for “beverage processing” and set forth 27 “conditions for issuance of permit number 2-041-218202-3.” The seventh and eight conditions respectively specified that the “[u]se classification is Beverage Processing” and that the “[s]ource classification is ‘Groundwater.’ Among the proposed conditions was that Seven Springs “is authorized to withdraw a maximum of 0.9840 mdg of groundwater for beverage processing use.” During the course of the final hearing, Seven Springs committed to the reduction of the withdrawal to 0.9840 mgd and to a corresponding permit limitation. The 25th and 26th conditions addressed where the water could be bottled: Except as may be expressly provided in the permit conditions, the entire groundwater allocation authorized by this permit shall be bottled at the Gilchrist County facility or otherwise used at the Gilchrist County facility for potable uses, equipment cooling, line flushing, and other industrial uses. As used in the permit conditions, the term “bottled” means sealed in bottles, jugs, and/or similar containers that are intended to be later offered for retail sale for human consumption. As used in the permit conditions, the term “Gilchrist County facility” means the manufacturing facility located at 7100 NE CR 340, High Springs, Florida 32643 in Gilchrist County, Florida. A portion of the groundwater allocation authorized by the permit may be bottled at the Madison County facility. As used in the permit conditions, the term “Madison County facility” means the manufacturing facility located at 690 and 1059 NE Hawthorn Avenue, Lee, Florida 32059 in Madison County, Florida. (The groundwater allocation authorized by the permit is not based on any use at the Madison County facility. The permit allocation is being granted based on the expectation that the product line build-out at the Gilchrist County facility will be completed in accordance with the schedule provided in the application documents submitted on November 1, 2019.)[6] The District’s Governing Board held a public meeting on August 11, 2020. When Seven Springs’ application came up for consideration, the following comments were made: Vice Chairperson Quincey: I would – I would like to move that we table the Seven Springs permit application. And the reason why I’m asking to table this is because we’ve looked at the application; and, as you look through, other water bottling facilities that’s in our district, we have always had the actual user of the water bottling permit on the application. So, in my opinion, we need to have Nestle as a co- applicant for – for this permit. So I think them being – if I understand it correctly, the well is on one property; but then, once it leaves there, it enters into a pipeline which goes to a facility. And the water – all of the water is actually used by Nestle and utilized by Nestle. So, with that being said, I think that they need to be co-applicants where we can be directly relating to them as we go through this process. * * * Board Member Schwab: I think that the science is sound on this permit. Seven Springs has gone through the process of applying for it, and they’ve met all the criteria. To have another person co- apply on the permit, I personally don’t think it’s necessary. I think the ones that are -- just because 6 Seven Springs’ proposed consumptive use of water, even with the proposed tankering of water to the Madison County Plant, is not an interdistrict transfer of water that is regulated by section 373.2295. you’re using the water somewhere else other than who is – who owns the property that the water is being pumped off of as well as the – that is applying for the permit and who hasn’t had the permit in the past, I just don’t necessarily agree with that right there. I’d rather --- I’d rather go ahead and do – take a vote and use what we’ve done right now in the way it is. * * * Chairperson Johns: Is there a rule or is there a legality that we need to look at? I mean, is there a rule that would need for Nestle to be a co-applicant or have their name on an application? And I don’t know whether you can help us with that or not. Mr. Reeves[7]: I think there is certainly – there is certainly support for that in our rules. I think that’s certainly something we would look at in the Board’s discretion. I think they’re – the issue I guess is what you’ve got is you’ve got a situation where the applicant owns the real property where the water is coming off of. To get the right to use the real – the water, they have to show a use; and they have to show what is going to be done with that water. In this case, the ultimate user is not on the permit. I think that’s Mr. Quincy’s point is that ultimate user is not on the permit, and so does that ultimate user need to be an applicant? Yeah, I think that is within the Board’s discretion in my opinion. * * * Vice Chairperson Quincy: I think that we should have that co-applicant, and I think they need to be part of when we say, [these are] the restrictions, they’re the ones using it, they need to agree to the restrictions. If they’re – whatever – whatever it is because, if you don’t have them, they’re the ones – 7 Mr. Reeves is the Governing Board’s counsel. However, the transcript from the August 11, 2020, Governing Board meeting does not give Mr. Reeves’s first name actually the ones using the water. It’s not the folks that we’re giving the permit to. They’re just pumping it out of the ground. * * * Chairperson Johns: This is a difficult vote. And I know everyone has looked at this on the Board. It’s a very important decision in many ways. I do feel like that [for] all of the reasons that Mr. Richard has said that I feel like that permit has been vetted well. But I do think that the – having their name on the permit is not a bad idea if we are going to – if theirs is going to be the ones that are using the water and have to respect the – the permit and the permit obligations. The Governing Board then took a vote and elected to table Seven Springs’ application. On August 12, 2020, the District referred this matter back to DOAH where it was assigned DOAH Case No. 20-3581. On August 14, 2020, the District filed a “Motion to Amend Grounds for Denial” (“the Motion to Amend”) arguing that Seven Springs’ application fails to satisfy section 2.1.1 of the Handbook entitled “Legal Control Over Project Site”: Applicants shall demonstrate the legal right to conduct the water use on the project lands or site. Legal right is demonstrated through property ownership or other property interest, such as a lease, at the project site. Applicants shall provide copies of legal documents demonstrating ownership or control of property through the requested permit duration. The recommended permit duration shall take into consideration the time period of the legal interest in the property. The requirements of this section shall not apply to proposed water uses reviewed in accordance with 40B-2.025(2), F.A.C., under the Florida Power Plant Siting Act. The District also argued that Seven Springs’ application fails to satisfy section 2.3.1 of the Handbook entitled “General Criteria”: Under section 373.223, F.S., in order to receive an individual permit, an applicant must demonstrate that the proposed water use is a reasonable- beneficial use of water. As part of the demonstration that a water use is reasonable- beneficial, the applicant must show demand for the water in the requested amount. This section describes the factors involved in determining whether there is demand and the appropriate permit allocation for a proposed water use. Demonstration of need requires the applicant to have legal control over the project site, facilities, and for potable water supply, the proposed service area, as required in sections 2.1.1 and 2.1.2. The allocation permitted to serve the applicant’s need for water must be based on the demonstrated need. Sections 2.3.2 through 2.3.4 identify the components of demand that must be identified by applicants for individual permits for each water use type. The District argued that Seven Springs’ application for a renewal permit should be denied because it: does not meet the above quoted provisions of the Applicant’s handbook because such application does not demonstrate (or even assert) that SEVEN SPRINGS has the legal right to conduct the water use on the project lands or site and further does not show (or even assert) that SEVEN SPRINGS has legal control over the project site and/or facilities. Seven Springs responded to the Motion to Amend, in part, by stating the following: In March 2019, Seven Springs submitted its application for the renewal of its existing permit. The requested renewal is for the same water allocation. In other words, the application does not propose any change in the use type, permittee, or allocation from what is currently permitted. Yet, just short of a year and five months after the application was filed, the District has developed a new theory to reject the renewal. On August 12, 2020, the District’s counsel notified Seven Springs that if Nestle Waters North America did not agree to be a co-applicant on the permit, the District would file its Motion to Amend. * * * Assuming arguendo that the District’s new position is correct, as the District’s motion makes clear, this alleged “error or omission” is glaringly obvious, and, therefore, there is no excuse for the District’s failure to timely raise the issue. More importantly, regardless of whether the District is otherwise permitted to amend its 120.60(3) agency action notice letter, the District is still prohibited by section 120.60(1) from denying Seven Springs’ permit for failure to correct this “error or omission” found in the initial application and continuing from the issuance of the original permit. After being granted leave to file a reply, the District replied, in pertinent part, as follows: SEVEN SPRINGS asserts that the DISTRICT cannot amend its notice of denial under the provisions of § 120.60(1), Fla. Stat., which provides, “An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.” The problem with this argument is that the DISTRICT is not seeking to amend the notice of denial to assert any, “failure to correct an error or omission or to supply additional information.” As far as the requested amendment is concerned, there is no error or omission nor additional information to be supplied. SEVEN SPRINGS has represented numerous times that Nestle Waters of North America owns the facility which will be bottling the water allocation. The applicable rules of the DISTRICT require the applicant to have control of the site where the water use will occur (Handbook at 2.1.1 Legal Control over Project Site, “Applicants shall demonstrate the legal right to conduct the water use on the project lands or site.”) (Handbook at 2.3.1 General Criteria, “Demonstration of need requires the applicant to have legal control over the project site, facilities, . . .”). The use of the water occurs where it is bottled (Handbook at 1.1(13) Beverages Processing Use – The sealing of drinkable liquids (including bottled water, as defined in section 500.03(1)(d), F.S.) in bottles, packages, or other containers and offered for sale for human consumption”). The amendment requested by the DISTRICT is not an amendment to assert a failure to correct an error or omission or to supply additional information. Rather, it is an amendment to assert that a particular DISTRICT rule should be applied to the application which, for the purposes of the amended grounds, has no error [or] omission or need of additional information. As all the amendment seek[s] to do is apply an additional DISTRICT rule[,] the proscriptions of § 120.60(1), Fla. Stat., do not apply. The undersigned issued an Order on September 16, 2020, denying the Motion to Amend based on the following reasoning: In the course of arguing that Seven Springs’ application should be denied, the District and Petitioners are not necessarily limited to the grounds set forth in the District’s March 3, 2020, letter. See generally DeCarion v. Dep’t of Envtl Reg., 445 So. 2d 619, 620 (Fla. 1st DCA 1984)(rejecting an argument that the Department of Environmental Regulation was “locked in” to the reasons for denial set forth in its letter of intent to deny a permit application). However, section 120.60(1), Florida Statutes (2020), forecloses certain grounds for denial from being raised at this stage of Seven Springs’ permit application proceeding. The aforementioned statute provides in pertinent part that: [u]pon receipt of a license application, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period . . . An application is complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Whether the Motion to Amend and Petitioner’s Motion to Amend will be granted turns on whether Seven Springs’ alleged failure to demonstrate legal right and legal control in its application is a pure substantive deficiency undermining the merits of Seven Springs’ application or a paperwork deficiency that could possibly have been corrected via the provision of additional documentation. That distinction was described by the Honorable John G. Van Laningham in MVP Health v. Agency for Health Care Administration, Case No. 09-6021 (Fla. DOAH April 22, 2010), rejected in part, Case No. 2009012001 (Fla. AHCA May 26, 2010)): Simply put, the failure of an applicant to meet the criteria for a license, which results in a denial on the merits, is not, as a logical matter, equal to the failure of an applicant to timely provide requested information (or correct an identified error or omission), which results, as a procedural matter, in a refusal to consider (or to deny) an application consequently deemed to be incomplete. It is one thing, in other words, to say, based on all the necessary information, that a person is ineligible for licensure. It is another thing to say that the person’s eligibility cannot and will not be determined because the person has failed to provide all of the necessary information upon which such a determination must be based. The Water Use Permit Applicant’s Handbook indicates that the new grounds for denial urged by the District and Petitioners are issues that Seven Springs could have potentially corrected if it had been provided the timely notice required by section 120.60(1). For instance, Section 2.1.1. indicates that “legal right” can be demonstrated by providing a legal document such as a lease. Section 2.3.1. refers to demonstrating “legal control,” and that requirement could certainly be satisfied by the provision of legal documents. In sum, the new grounds for denial urged by the District and Petitioners are in the nature of alleged deficiencies that Seven Springs could have potentially corrected if it had been given the notice and opportunity required by section 120.60(1). While the District asserts that Seven Springs has represented numerous times that Nestle owns the facility that will be bottling the water allocation, that assertion (even if true) does not excuse the District from timely notifying Seven Springs of the perceived omission in its application and giving Seven Springs an opportunity to correct that perceived omission. Now that the 30-day notification period in section 120.60(1) has passed, the District is foreclosed from basing denial of Seven Springs’ application on a failure to submit documentation to demonstrate compliance with Sections 2.1.1. and 2.3.1. See § 120.60(1), Fla. Stat. (mandating that “[a]n agency may not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.”). In a Motion for Reconsideration, the District argued that: SEVEN SPRINGS does not bottle the water and does not propose to bottle the water. SEVEN SPRINGS sells the water to a local facility, apparently owned or legally controlled by someone else, to be bottled. As SEVEN SPRINGS does not bottle the water, it is not possible for SEVEN SPRINGS to “demonstrate the legal right to conduct the water use” as required by 2.1.1 of the Applicant’s Handbook. This is not a “paperwork deficiency.” This is a “substantive deficiency” which is shown on the face of SEVEN SPRINGS’ application. The DISTRICT’s motion to amend should be granted so this issue can be conducted at the final hearing. The undersigned issued an Order on September 25, 2020, denying the District’s Motion for Consideration: The instant case is before the undersigned based on Respondent’s “Motion for Reconsideration of Order Denying Motion to Amend” (“the Motion for Reconsideration”) filed on September 21, 2020. After considering the arguments set forth therein, the Motion for Reconsideration is DENIED based on the reasoning set forth in the “Order Denying Motions to Amend” issued on September 16, 2020. However, the undersigned provides this clarification. The issue in the instant case is decided by the fact that all of the information available to the undersigned demonstrates that the alleged deficiency in the Seven Springs Water Company’s (“Seven Springs”) application is of the type that potentially could have been corrected by the provision of additional information. Thus, this alleged deficiency is something that could have, and should have, been the subject of a notice to Seven Springs within 30 days of Respondent receiving Seven Springs’ application. See § 120.60(1), Fla. Stat. (2020). Regardless of whether Seven Springs was actually capable of correcting that alleged deficiency, any other ruling would render the pertinent requirement set forth in section 120.60(1) meaningless. The District filed a “Second Motion in Limine” (“the Second Motion in Limine”) on September 28, 2020, arguing that: The only testimony and evidence allowed at the final hearing herein should be required to be related to SEVEN SPRINGS’ presently filed permit application, and the permit terms and conditions requested by SEVEN SPRINGS therein. Testimony and evidence of any permit terms and conditions not included or requested in SEVEN SPRINGS’ presently-filed application should be precluded from being introduced into evidence or considered at the final hearing. Seven Springs responded, in part, as follows: Further, the District’s position that “the only testimony and evidence allowed at the final hearing should be required to be related to SEVEN SPRINGS’ presently filed permit application” ignores the fact that the District has already received multiple documents addressing the few issues raised by the District in its March 3, 2020 proposed agency action. In fact, some of those documents are currently available in the District’s online permitting file for the Seven Springs’ permit. This publicly accessible permit file includes Seven Springs’ engineering report titled “NWNA High Springs Water Consumption Viability Analysis” prepared by Adam Thibodeau and dated July 30, 2020, and the District’s engineering report titled “NWNA High Springs Water Consumption Annual Daily Usage Estimate” prepared by Tom Rutledge for the District and dated July 30, 2020. Additionally, the District’s own summary/description in its online permit file identifies the requested allocation as 0.984 MGD (See Exhibit A), which is the reduced allocation contained in the July 30, 2020 Seven Springs’ expert report and accepted in the District’s expert report. Additional information already reviewed or prepared by the District as part of this proceeding should not be precluded from being considered as evidence, including the amended memorandum of agreement between Seven Springs and NWNA dated May 27, 2020, provided to SRWMD in June 2020, and the additional permit conditions contained in the Technical Staff Report attached to the Stipulation and Joint Motion for Relinquishment of Jurisdiction and published online by the District in its August 4, 2020 Governing Board Agenda Package. No statute, rule or case law supports limiting or precluding consideration of this information which has been in the District’s possession for months and is directly relevant to the issues in this proceeding (i.e., providing reasonable assurances of the applicable permitting criteria). Nor is there any rule or statute limiting the information which may be considered in a de novo administrative hearing to only the information “presently on file with the DISTRICT” based upon some arbitrary date chosen by the District. The District’s argument that “amendments may not be made at the last minute and under circumstances which prejudice other parties,” is without merit as any “changes” to the Seven Springs’ application have already been discussed with, reviewed by, and accepted by the District months before the final hearing date. The District’s reliance upon City of West Palm Beach v. Palm Beach County, 253 So. 3d 623 (Fla. 4th DCA 2018), the only case cited to in the District’s Motion, is misplaced. In City of West Palm Beach, “[t]he amended application included revised construction plans, a redesigned storm water management system, a nutrient loading analysis, a compensatory mitigation plan addendum, and a new cumulative impact assessment” that were submitted only one week prior to the final hearing. Id. at 625. To the extent there has been any “amendment” or additional evidence provided to support issuance of the Seven Springs permit, it is Seven Springs responding to the District’s three alleged basis for denial, all asserting more information was required. The Amended Memorandum of Agreement provided the response the District found sufficient to address the first basis for denial; the Seven Springs expert report dated July 30, 2020 provided the response to address the District’s second basis for denial; and the two additional permit conditions (quoted below in footnote 4) were provided by the District to address the third basis for denial. The District’s expert report also provides evidence that the High Springs Plant, as proposed, has the capacity and ability to use the 984,000 gpd annual average water allocation and satisfies the second basis for denial. None of the [grounds] for denial at issue in this proceeding include any environment or resource protection criteria, nor do they require any new complex evidence to be developed. Unlike City of West Palm Beach, here the District is aware of Seven Springs’ acceptance of the reduced allocation and there are no “highly technical” amendments being proposed. The District is fully aware of, and has had ample opportunity to review the responses to the basis of denial that have been provided to, or suggested by, it in this proceeding. It is ironic that the District is continuing to request new information (discussed below) to satisfy one of the basis for denial while, at the same time, attempting to limit Seven Springs to only what is in its “current” permit file. The undersigned issued an Order on October 13, 2020, denying the District’s Second Motion in Limine on the basis that the District had failed to demonstrate that it was in danger of being prejudiced. Findings Specifically Relating to the Grounds for Denial The District’s first basis for denial asserts that the MOA failed to show that Seven Springs is obligated to provide “any or all of the requested allocation to NWNA.” When one considers the MOA, the amended MOA, and the 25th and 26th conditions negotiated between Seven Springs and the District’s staff, the greater weight of the evidence demonstrates that the entire groundwater allocation will be bottled at the Nestle plants at High Springs and Madison. As a result, this first basis cannot support denial of Seven Springs’ permit application. With regard to the second ground for denial, the 21st condition negotiated between Seven Springs and the District’s staff reduced the requested allocation from 1.152 mgd to 0.984 mgd. The testimony and evidence presented at the final hearing demonstrated that there are currently two bottling lines in operation in the High Springs plant. Line 1 has been replaced since NWNA acquired the facility with a new “high–speed” line (at a cost of approximately $15 million) that fills 81,000 half-liter bottles per hour (“bph”), and Line 2 is an older 54,000 bph line that is undergoing renovations to a high–speed line. Although there are currently only two lines, NWNA has plans to buildout the High Springs plant so that it will have four high-speed lines. Seven Springs presented evidence and credible expert testimony of Adam Thibodeau, P.E., demonstrating that the High Springs plant will have four high-speed lines in operation within the proposed permit term of five years. The third high-speed line will be installed within the existing building. A building expansion will allow the addition of a fourth high-speed line. It is expected that the third and fourth lines added to the High Springs plant will be capable of producing at least 90,000 bottles per hour. The greater weight of the evidence supports a finding that the plans for expansion of the bottling plant production lines are sufficiently established. Mr. Thibodeau calculated the estimated daily water usage at the High Springs Plant using two separate assumed average line efficiency rates: 85 percent (the original number proposed by Mr. Thibodeau) and 77 percent (the number arrived at after discussions with the District’s expert). Mr Thibodeau testified that, on average, high-speed lines can operate at an overall 80 to 85 percent efficiency, and that both 85 and 77 percent are reasonable efficiency rates for the proposed lines. His testimony is accepted. Ultimately, the 77 percent efficiency rate was chosen, meaning water demand was calculated at 77 percent of the maximum line production (accounting for mechanical efficiency and planned and unplanned downtime/maintenance) for the four lines at the High Springs Plant once it is built out. This resulted in a demonstration of a 0.8740 mgd water demand for product water, and a 0.1100 mgd water demand for equipment cooling, line flushing, and other uses. Those numbers result in a cumulative total expected daily water usage of 0.984 mgd annual average for the High Springs plant. The District’s expert authored a report stating that his “evaluation would support a proposed average water usage of 0.984 million gallons per day annually.” In addition, the District’s expert testified that the 0.984 mgd figure was in the range of possible outcomes. In sum, the greater weight of the evidence demonstrated that the High Springs plant will have sufficient physical capacity to use the full requested allocation of water within the proposed five-year permit term.8 The District’s third basis for denial asserts that Seven Springs “has provided no reasonable assurance that the High Springs facility is the only beverage processing facility where the use of the requested allocation will occur.” The issue of tankering water to Madison is not part of the application, was subject to no RAI, and was not part of the original denial. It was raised, apparently, as part of settlement negotiations that were not accepted by the District. In keeping with the previous rulings limiting the District from adding grounds for denial, the undersigned does not accept that Seven Springs can simply amend its application at the hearing to add activities and add uses for the water that were not proposed. 8 The physical ability to process 0.984 mgd is satisfied by the High Springs plant without any reliance on tankering water to the Madison County plant. If Seven Springs wants to use the water from its High Springs wells at a facility other than the adjacent Nestle bottling plant, then it may propose that use in a request for a permit modification. However, because that use is not a part of either the application or the notice of agency action properly before this tribunal, it is not authorized by anything contained in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District render a Final Order granting permit No. 2-041-218202-3 to the Seven Springs Water Company. DONE AND ENTERED this 20th day of January, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2021. COPIES FURNISHED: Paria Shirzadi Heeter, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson Varn, P.A. 109 North Brush Street, Suite 300 Tampa, Florida 33602-2637 (eServed) George T. Reeves, Esquire Davis, Schnitker, Reeves and Browning, P.A. Post Office Drawer 652 Madison, Florida 32341 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 (eServed) Frederick T. Reeves, Esquire Frederick T. Reeves, P.A. 5709 Tidalwave Drive New Port Richey, Florida 34562 (eServed) Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601 (eServed) Hugh L. Thomas, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060 (eServed)
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
